Pharmacies are front and center as the second phase of a multidistrict lawsuit over the opioid crisis begins, a law professor told Healio Primary Care.
Andrew Pollis, JD, from Case Western Reserve University, said the case, in which two Ohio counties are suing CVS, Rite Aid, Walgreens and Walmart, serves as a bellwether for more than 2,000 similar cases filed by cities, counties and states nationwide. The governments allege that the pharmacies knew about opioid overprescribing and overordering and did nothing to stop it.
“When a company knows that a particular community has been oversaturated with opioid products based on population, then according to the plaintiffs, the company should raise a red flag and recognize that something is amiss,” Pollis said.
“Conversely, the pharmacies say all they did was fill lawful prescriptions, and if the prescriptions weren’t appropriately written, it is the doctor’s fault, not the pharmacies,” he continued.
U.S. District Court Northern District of Ohio Judge Dan Polster allowed the governments to pursue the argument that the pharmacies violated public nuisance laws, as he did in earlier court actions against Purdue Pharma, Johnson & Johnson and other opioid distributors, according to David L. Noll, JD, an associate professor of law at Rutgers Law School. Public nuisance laws usually apply when an injury or damage impacts the general public, rather than an individual, Danielle Pelfrey Duryea, JD, the founder and former director of the Health Justice Law & Policy Clinic at the University at Buffalo School of Law, previously told Healio Primary Care.
Pollis noted that regardless of the lawsuit’s outcome, the domino effect of the case could be “very sobering.”
“This could change the ball game completely when it comes to product liability,” Pollis said. “Does it mean the government can sue fast food chains for marketing products like French fries? Where do you draw the line?”
While history suggests the claims against the pharmacies will settle before the trial starts this fall, that history may not necessarily repeat itself, Pollis added.
“It will depend on the appetite of the parties involved,” Pollis said. “But even if they do settle ahead of trial, it will not resolve very much since it’s just two plaintiffs out of 2,000.”
The “multimillion-dollar question,” Noll said, is which defendant bears responsibility for the opioid crisis, which could determine if the lawsuit is settled out of court.
“You have the pharmacy companies pointing at the distributors. You have the manufacturers pointing back at them. You have the cities pointing at the pharmacy companies and the opioid distributors. It all keeps going in the same circle,” he said.
“When a company knows that a particular community has been oversaturated with opioid products based on population, then according to the plaintiffs, the company should raise a red flag and recognize that something is amiss,” a law professor told Healio Primary Care.
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Walgreens, Rite Aid and Walmart did not respond to a request for comment. CVS referred Healio Primary Care to a press release it issued, stating that the company “fundamentally disagrees with the recent assertions” by the plaintiffs and that patient safety is its “highest priority.”
Noll said the Judicial Panel on Multidistrict Litigation has remanded many of the government claims against opioid distributors to different locations across the United States. The tactic of scattering the plaintiffs geographically could also make a large, collective settlement more difficult to achieve, he continued.
Reuters recently reported that OxyContin maker Purdue Pharma LP and its controlling Sackler family are still negotiating with cities, counties and states on a proposed settlement worth an estimated $10 billion to resolve claims that it played a role in creating the opioid crisis.
Stay tuned to Healio Primary Care for continuing coverage of the case and check out our Opioid Resource Center for past stories on opioid-related litigation. – by Janel Miller
Reference: New York Times. 3,271 pill bottles, a town of 2,831: Court filings say corporations fed opioid epidemic. https://www.nytimes.com/2019/07/19/health/opioids-trial-addiction-drugstores.html. Accessed Feb. 13, 2020.
Disclosures: Noll reports previously working with the Sackler family. Pollis reports no relevant financial disclosures.