Ohio Jury Found Pharmacies Liable for Fueling the Opioid Crisis

by Carolyn Hendler, JD

Published December 5, 2021 | Law, Federal & State Courts

On Nov. 23, 2021, a federal jury in Ohio held pharmacies liable for their role in the epidemic of opioid use in America. The jury found that CVS, Walgreens and Walmart were responsible for inappropriately dispensing large amounts of opioid drugs prescribed by doctors that caused hundreds of deaths from overdoses. Rite Aid and Giant Eagle previously settled with the counties.¹

The verdict in Lake and Trumbell counties was the first of its kind. Never before had pharmacies dispensing prescribed pain killers been held liable for the opoid crisis, which reportedly has resulted in the death of half a million Americans. The county lawyer, Mark Lanier, said:

The law requires pharmacies to be diligent in dealing drugs. This case should be a wake-up call that failure will not be accepted…The jury sounded a bell that should be heard through

all pharmacies in America.²

Many Opoid Prescriptions Were Sold on the Black Market

Between 2012 and 2016, approximately 80 million pain pills prescribed by doctors were dispensed in Trumbull County, which would have been enough to allow every person in the county to get 400 pills each and Lake County saw at least 61 million pills dispensed.³ Once dispensed, many of these pills were sold on the black market.⁴ The jury found that CVS, Walgreens and Walmart were liable for contributing to a public nuisance by dispensing so many opioid pills unchecked without regard to the potential effect on the community, which ultimately led to deaths by overdose and addiction and overwhelmed courts, social services and law enforcement.⁵

The Ohio counties argued that the pharmacies were the last line of defense in controlling the distribution of pain pills and should have prevented them from getting in the wrong hands.⁶ The pharmacies denied culpability claiming that the opioid crisis occurred because doctors over-prescribe opioids (“pill mill doctors”) and because there is an illegal drug trade and absent drug regulators. The defendants further claimed that the law never intended for pharmacists to play the role of a prescription drug use watchdog and second guess doctor’s orders.⁷

A CVS spokesman said:

We strongly disagree with the decision. Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need.⁸

A Walgreen spokesperson concurred…

As we have said throughout this process, we never manufactured or marketed opioids nor did we distribute them to the ‘pill mills’ and internet pharmacies that fueled this crisis. The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable.⁹

Did Pharmacies Create a Public Nuisance?

The Ohio counties filed the lawsuit in 2018 as part of the federal multi-district litigation that was created in response to the large number of lawsuits filed against opioid manufacturers and distributers. The counties claimed that the pharmacies created a public nuisance as they “abused their position of special trust and responsibility” and “fostered a black market for prescription opioids.”¹⁰

 The argument that pharmacies are liable for acting as a public nuisance has already lost in courts in Oklahoma and California last month.¹¹ The Oklahoma Supreme Court overturned a $465 million verdict against Johnson and Johnson based on the same public nuisance theory. Currently, two trials on the same issue are proceeding in Washington state and New York with a trial in West Virginia finished but waiting on a verdict.¹²

Damages in the Ohio case will be assessed in the spring, but the counties are asking for over a billion dollars each, planning to put the funds towards opioid abatement measures.¹³

Kim Frasier, head of Lake County’s Department of Alcohol, Drug Addiction and Mental Health Services, said:

Truly, in Lake County, we have not had a corner of the county that has not been impacted by this epidemic. This verdict gives voice to those individuals and those families who have been so traumatized.¹⁴

County attorney Lanier feels that justice was served, stating:

For decades, pharmacy chains have watched as the pills flowing out of their doors cause harm and failed to take action as required by law. Instead, these companies responded by opening up more locations, flooding communities with pills, and facilitating the flow of opioids into an illegal, secondary market. The judgment today against Walmart, Walgreens and CVS represents the overdue reckoning for their complicity in creating a public nuisance.¹⁵

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