Thousands of local governments and plaintiff attorneys are seeking to extort companies in the drug supply chain by holding them liable for the nation’s opioid epidemic. Now armed with a jury verdict, a federal judge is holding Walgreens, Walmart and CVS hostage to a settlement.
That sums up the recent news that a jury in a bellwether case in Ohio has found the three large pharmacy chains liable for creating a public nuisance by filling opioid prescriptions. The companies say they plan to appeal, but they will have to wait until federal Judge Dan Aaron Polster, who presides over the consolidated cases, issues a separate ruling on damages.
Our sources say Judge Polster separated the verdict from the pecuniary punishment to squeeze the companies to settle this case and thousands of others that have yet to go to trial. The two Ohio counties that are the leading plaintiffs have each estimated their costs from the opioid epidemic at about $1 billion. Potential liability for claims by all the plaintiffs could be many times greater.
Since the multi-district litigation landed in his court, Judge Polster has pushed the defendants to pay up. When the pharmacies refused, he scheduled a trial in a lawsuit involving the two Ohio counties. He then stacked the deck against the pharmacies with procedural motions and declined to call a mistrial after a juror shared information biased against the defendants with fellow jurors. (“A Case of Opioid Tort Abuse,” Nov. 9).
The Sixth Circuit Court of Appeals has criticized the judge for violating basic judicial procedure, and the pharmacies could cite his missteps in an appeal as grounds for reversal.
The jury verdict also distorts product liability and public-nuisance law since opioids are legal products and pharmacies had no control over how they were used by customers. If the verdict stands, or the companies settle, the precedent could lead to similar nuisance suits across much of the U.S. economy.
Oklahoma’s Supreme Court earlier this month reversed a $465 million judgment against Johnson and Johnson that was also based on the charge that the drugmaker created a public nuisance by marketing opioids. A state judge in Orange County, Calif., also recently tossed public nuisance lawsuits by counties against opioid manufacturers.
Judge Polster knows that a settlement would pre-empt review by the Sixth Circuit and the chance of a reversal. The companies may be tempted to cut their losses. But as Johnson and Johnson showed in Oklahoma, it sometimes pays not to surrender.