CVS, Walmart, Walgreens Notch Ohio Win Over Opioid Judgment (3)

CVS Pharmacy Inc., Walgreens Boots Alliance Inc., and Walmart Inc. notched a major win Tuesday with a Ohio Supreme Court ruling that likely upends a $650 million judgment against them.

Ohio’s product liability law prohibits claims like the ones for which the three pharmacy megachains were found liable, as well as the type of judgment they face, the justices ruled 5-2.

Two counties sought “equitable relief” for common law public-nuisance claims—which a federal judge ordered and sculpted to “abate” the problems prescription painkillers caused—and argued the state law allowed for such a judgment. The law only barred claims seeking compensatory damages, they said.

But the law as written does away with product-liability claims, “including product-related public-nuisance claims seeking equitable relief,” Justice Joseph T. Deters (R) wrote. “We are constrained to interpret the statute as written, not according to our own personal policy preferences.”

The ruling creates possibly insurmountable problems for the August 2022 judgment obtained by Lake and Trumbull counties in northeast Ohio after a jury found the pharmacies liable for downplaying the painkillers’ addictive qualities and making billions of dollars in profits at the expense of patient safety.

The trial and its result—which includes steps the pharmacies are required to pay for to combat the epidemic, including treatment and training first responders—were set up to be a possible harbinger of outcomes that could arise in the thousands of federal opioid lawsuits filed from across the US. However, the companies settled most of the other suits they faced.

The pharmacies asked the US Court of Appeals for the Sixth Circuit to overturn the judgment, but it kicked the case to the Ohio Supreme Court with a question about the state product liability law. The pharmacies say the law as amended in the early 2000s prohibit the kind of claims they faced in federal court.

The state Supreme Court said “the Pharmacies have the better argument.” Deters drilled down into the phrase “also includes,” which appears in the law at issue.

He also shot down other arguments by the county regarding the law’s history in the legislature, saying there was no reason to dive into it because the law’s wording is clear and because an uncodified part of an amendment lawmakers passed in 2007 clearly shows the intent of lawmakers.

While the court recognizes the harm opioids have caused to Ohio, “creating a solution to this crisis out of whole cloth is, however, beyond this court’s authority,” Deters wrote.

While the ruling was 5-2, Justice Patrick F. Fischer (R) only agreed with the judgment. Democratic Justices Michael P. Donnelly and Melody J. Stewart partially dissented, with Stewart writing that public-nuisance claims seeking “equitable relief” should still be allowed under Ohio law.

CVS, Walgreens, and Walmart praised the ruling, with Walgreens saying in a statement that it “allows us to put this litigation behind us so we can continue focusing on the health and wellbeing of our patients, customers, and team members in northern Ohio and across the country.”

Peter H. Weinberger, an attorney with Spangenberg Shibley & Liber LLP representing the counties, said the decision “will have a devastating impact on communities and their ability to police corporate misconduct.” While nationwide settlements with drugmakers, distributors, and pharmacies total nearly $60 billion, the ruling “undermines the very legal basis that drove this result,” he said.

He vowed to continue fighting in the outstanding cases through “other legal avenues.”

The Ohio Supreme Court isn’t the only state high court to address a question about public nuisance. The Oklahoma Supreme Court, in throwing out a $465 million award against Johnson & Johnson in 2021, said a trial judge misconstrued that state’s public nuisance law when he ruled that the pharmaceutical giant’s marketing of its painkillers helped fuel the state’s opioid epidemic.

The US Court of Appeals for the Fourth Circuit has also asked West Virginia’s high court whether the state’s common law allowed for a public nuisance claim based on the distribution of controlled substances.

CVS is represented by Munger, Tolles & Olson LLP. Walgreens is represented by Sullivan & Cromwell LLP. Walmart is represented by Jones Day. The counties are also represented by Kellogg, Hansen, Todd, Figel & Frederick PLLC, Lanier Law Firm, Plevin & Gallucci Co., Thrasher, Dinsmore & Dolan, and Napoli Shkolnik PLLC.

The case is In re: Nat’l Prescription Opiate Litig., Ohio, No. 2023-1155, 12/10/24.