Ohio Justices’ Opioid Ruling Shows Deals Were Based on ‘Nothing’

Drug companies have paid billions to settle allegations they contributed to the opioid epidemic based on a legal theory that they contributed to a public nuisance, harming cities, counties, and states—a legal theory that, at least in Ohio, is now considered faulty.

That’s because the Ohio Supreme Court on Tuesday likely obliterated a $650 million judgment obtained by two counties against CVS Pharmacy Inc., Walgreens Boots Alliance Inc., and Walmart Inc. when it found the public-nuisance claims against the pharmacy megachains weren’t viable.

Per plaintiffs’ lawyers, nearly $60 billion has been spent by major drug manufacturers, distributors, and pharmacies to settle thousands of common-law public-nuisance claims, with relatively few ever going to trial. Still, while it was no doubt an expensive endeavor to get to the court’s 5-2 ruling, Case Western Reserve University law Professor Andrew S. Pollis said it was a gamble that paid off.

It also showed that “you have all these cases that settled for so much money on the strength of, at least with respect to Ohio, a principle that has now been kind of eradicated,” Pollis said.

“It means that the whole settlement is built on what might be a foundation of nothing,” he added.

Public Nuisance

The Ohio Supreme Court said the law as written does away with product-liability claims, “including product-related public-nuisance claims seeking equitable relief.” Such claims arise when entities allegedly exposed a broad community to a certain kind of risk.

The ruling likely upends the judgment, which a federal judge set up to abate problems associated with the epidemic by requiring CVS, Walgreens, and Walmart to pay for programs for things such as treatment and training first responders in the two counties that brought their public-nuisance claims to trial.

Ohio’s justices, who issued their ruling at the request of the US Court of Appeals for the Sixth Circuit, aren’t alone in their assessment of common-law public-nuisance claims and their relationship to the opioid litigation.

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 opioid epidemic.

Other courts across the country have also ruled on the issue at various points during the years of litigation surrounding the opioid epidemic, though they’ve been inconsistent, said Adam Zimmerman, a law professor at the University of Southern California.

The immediate effect of the Ohio Supreme Court’s ruling will be felt in opioid cases filed by Buckeye State cities and counties against companies that haven’t yet settled, both professors said. However, its full reach depends in part on how much other state high courts look to the Ohio justices for guidance.

And that may be a tough sell.

The ruling isn’t likely to influence judges and justices in other states, because it’s specific to Ohio, Pollis and Zimmerman said. It focuses on specific amendments to Ohio law from the early 2000s that were designed to limit public-nuisance lawsuits against gun manufacturers.

Pollis said its usefulness outside Ohio will depend on whether another state has an analogous product-liability law. That’s “unlikely,” he said, because Ohio’s law was amended and the history of changes appears important to how it’s interpreted.

‘50 States, 50 Opportunities’

The extent of how the ruling will affect the opioid litigation beyond the public-nuisance claims advanced by the two counties at issue is also unclear. Senior US District Court for the Northern District of Ohio Judge Dan Aaron Polster, who issued the judgment in 2022 after a jury found the pharmacies liable for exacerbating the epidemic, ruled that the trial would only focus on the public-nuisance claims.

Other claims by the counties that obtained the judgment were put on hold for later discovery and trial, the judge wrote in a 2020 order.

Other cities and counties also continue to pursue lawsuits against players in the drug industry, though a pending lawsuit count wasn’t immediately available.

And while Tuesday’s ruling takes a tool away from the plaintiffs, it may not be a very big one.

“We have 50 different states and 50 different opportunities for outcomes, to the extent these claims haven’t settled,” Zimmerman said. But as for Ohio, the ruling “closes the door on those types of claims.”

The justices’ decision didn’t seem to deter the cities and counties, though, at least not completely.

“It’s a real pity for Ohio citizens who will have to pay the price while in every other state the culprits are paying,” W. Mark Lanier of Lanier Law Firm, who represented the two counties at trial, said in an email. “Great for big business and pharma, but really a punch in the gut for citizens of Ohio.”

He continued, “in the future, for Ohio plaintiffs I guess we will need to try a RICO case against the defendants.”

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, Plevin & Gallucci Co., Thrasher, Dinsmore & Dolan, Napoli Shkolnik PLLC, and Spangenberg Shibley & Liber LLP.

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