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Ohio Supreme Court weighs question of state law at 6th

Circuit's

request

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Case was first against pharmacies over opioids to go trial

By Nate Raymond

March 26 (Reuters) - Pharmacy operators CVS,

Walmart ( WMT ) and Walgreens on Tuesday urged Ohio's

highest court to conclude they cannot be held liable for fueling

an opioid epidemic in two of the state's counties that won a

$650.9 million judgment against them.

Jeffrey Wall, a lawyer for Walgreens, told the Ohio Supreme

Court that state law bars Lake and Trumbull counties' claims

that the dispensing of addictive pain medications by the

pharmacy chains created a public nuisance in their communities

that the companies should be forced to help remedy.

Wall said an amendment to the Ohio Products Liability Act

that the state legislature adopted in 2007 explicitly barred all

common-law public nuisance claims based on the sale of products

that seek compensation from a manufacturer or supplier.

"That language could not be broader or more categorical,"

Wall said.

But some justices questioned whether the legislature

intended for the statute to be read so broadly when it was

primarily concerned with lawsuits by individuals seeking damages

for past injuries caused by defective products.

The opioid case, by contrast, was brought by local

governments over dangerous but lawful prescription painkillers

that were not alleged to be defective in order to secure

equitable relief to prevent future harm, not compensate for past

damages.

"Can we even speculate that this was even on their minds,

the harm contemplated in this particular case?" Justice Michael

Donnelly asked with regards to the legislature.

The case was the first the three pharmacy operators had

faced at trial of the thousands of lawsuits filed by states and

local governments against drug makers, distributors and

pharmacies over the deadly U.S. opioid addiction epidemic.

A federal jury in Cleveland in 2021 concluded an oversupply

of addictive pain pills and the diversion of those opioids to

the black market created a public nuisance in the counties and

that the companies helped cause it.

The counties had alleged the companies did so by

disregarding "red flags" and failing to ensure the prescriptions

pharmacies were filling were valid. The companies denied

wrongdoing.

U.S. District Judge Dan Polster, who is overseeing the

federal multidistrict litigation over the opioid epidemic,

afterwards ordered CVS, Walmart ( WMT ) and Walgreens to pay a combined

$650.9 million to help the two counties address, or abate, the

harms caused by the epidemic.

CVS, Walmart ( WMT ) and Walgreens subsequently agreed to a

collective $13.8 billion to settle the nationwide lawsuits

against them by states and local governments. But the two Ohio

counties did not settle and defended their verdict on appeal.

"They've gambled they can recover more through this

litigation, and unfortunately they run into clear statutory

text," Wall, a lawyer at Sullivan & Cromwell, argued Tuesday.

The 6th U.S. Circuit Court of Appeals in September asked the

Ohio Supreme Court to review the matter, saying it raised "novel

and unresolved questions" of state law.

David Frederick, a lawyer for the counties, said nothing in

Ohio law prevented Polster from issuing equitable relief to

address future, not past, harms and force the companies to

change their dispensing practices and pay into a fund to help

mitigate addiction in their communities.

"It is not the case that the legislature would have thought

so sweepingly as Mr. Wall has argued today that we're going to

do away with all equitable remedies," said Frederick, a lawyer

at Kellogg, Hansen, Todd, Figel & Frederick. "It surely would

have said so."

The case is In re: National Prescription Opiate Litigation,

Ohio Supreme Court, No. 6th U.S. Circuit Court of Appeals, No.

2023-1155.

For the plaintiffs: David Frederick of Kellogg, Hansen,

Todd, Figel & Frederick

For CVS: Donald Verrilli of Munger, Tolles & Olson

For Walmart ( WMT ): Noel Francisco of Jones Day

For Walgreens: Jeffrey Wall of Sullivan & Cromwell

Read more:

CVS, Walmart ( WMT ), Walgreens agree to pay $13.8 bln to settle

U.S. opioid claims

CVS, Walmart ( WMT ) and Walgreens ordered to pay $650.6 million to

Ohio counties in opioid case

Pharmacy chains including CVS helped fuel opioid epidemic,

U.S. jury finds

(Reporting by Nate Raymond in Boston)