Sept 2022 | Volume 14, Issue 2

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According to the article, Walmart, CVS, and Walgreens must pay a combined $650.6 million to two Ohio counties for damages related to the opioid crisis, a federal judge ruled recently.

U.S. District Judge Dan Aaron Polster ruled that over the next 15 years, approximately $306.2 million must be paid to Lake County and approximately $344.4 million must be paid to Trumbull County.

All three companies were found liable for their role in the opioid epidemic in both Lake and Trumbull counties last November. Polster presided over separate proceedings in May to determine how much money should be awarded.

The lawsuit, which was initially filed in 2018, was part of the federal multi-district litigation created that year to address the manifold claims against opioid manufacturers and distributors.

The counties alleged that the pharmacies "abused their position of special trust and responsibility" as registered dispensers of controlled drugs, and in so doing "fostered a black market for prescription opioids," the complaint reads.

Polster wrote in his ruling that the awarded damages are meant to "address a small piece of a terrible and tenacious and escalating national tragedy."

“Even if the Court could wave a magic wand and forever remove any existing or future oversupply of legal prescription opioids and prevent all future diversion of legal prescription opioids into the illicit market, this conjuring would do nothing to reduce the nuisance that would continue to exist in Lake and Trumbull Counties -- that is, the widespread prevalence of OUD [opioid use disorder] and opioid addiction,” Polster wrote.

Spokespersons for Walmart, CVS, and Walgreens all said they plan to appeal the ruling.

"The facts and the law did not support the jury verdict last fall, and they do not support the court's decision now," Fraser Engerman, senior director of external relations for Walgreens, said in a statement. "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."

Walmart released a statement saying the plaintiffs in the case "sued Walmart in search of deep pockets" and claimed the trial "was engineered to favor the plaintiffs' attorneys and was riddled with remarkable legal and factual mistakes."

"Instead of addressing the real causes of the opioid crisis, like pill mill doctors, illegal drugs and regulators asleep at the switch, plaintiffs' lawyers wrongly claimed that pharmacists must second-guess doctors in a way the law never intended, and many federal and state health regulators say interferes with the doctor-patient relationship," the statement reads.

A representative for CVS said Polster's ruling is a "misapplication" of the law.

"We strongly disagree with the Court's decision regarding the counties' abatement plan, as well as last fall's underlying verdict. Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need," Mike DeAngelis, executive director of corporate communications for CVS Health, said.

Local leaders in Trumbull and Lake Counties, however, lauded the ruling and said the damages will go toward opioid abatement measures.

Mauro Cantalamessa, Trumbull County commissioner, said that the county hopes the ruling "will signal the beginning of the long road to recovery for the people of Trumbull County."

"For years, the dedicated frontline workers of Trumbull County have fought to address the harms of the opioid crisis. Through their experience and our efforts in this litigation, we know which mitigation strategies are effective in preventing further damage to our community. The news today means that we will soon have the long-awaited resources necessary to extend aid to properly address the harms caused by this devastating epidemic," Cantalamessa said.

Lake County Commissioner John Plecnik said his county is investing the $306.2 million awarded to them into tackling the impacts of the opioid crisis in their communities.

"I am grateful to the Court for recognizing the Opioid Epidemic as a public health crisis. This decision holds Big Pharma accountable for the great harm and lives lost due to the overselling of Opioids," Plecnik said "We hope the legal precedent that Lake and Trumbull Counties have won together will set the stage for the rest of the nation and help end the Opioid epidemic."

Discussion Questions

1. According to www.worldatlas.com, there are 3, 142 counties (or county equivalents) in the United States. The damages award of $650.6 million referenced in the article covers only two counties in Ohio (Lake County and Trumbull County). In recognition of those statistics, is the damages award in this case reasonable? Explain your response.

The $650.6 million damages award in this case does seem quite large, particularly since only two counties in Ohio are involved. When considering the scope of additional potential liability, the number seems staggering, and makes one wonder whether even large companies like Walmart, CVS, and Walgreens could survive financially. It is worthy to note, however, that the $650.6 million damages award is on appeal, and the appellate court does have the power to modify the amount of the award.

2. Notice that the defendants in this case, Walmart, CVS, and Walgreens, were retail distributors of the opioids, not manufacturers. In your reasoned opinion, are these retail distributors responsible for the opioid epidemic in the United States? Explain your response.

This is an opinion question, so student responses may vary. Even though Walmart, CVS, and Walgreens are not opioid manufacturers, and even if they may not be entirely responsible for the opioid epidemic in the United States, they can be held liable for their complicity in the epidemic. The “loose analogy” here is that even though an illicit seller of drugs “on the street” typically does not manufacture the drug, the seller can certainly be held liable for their involvement in the “chain of distribution” through which the user ultimately gains possession of the drug.

3. According to Walmart, the plaintiffs in this case sued the company “in search of deep pockets.” What does this mean? Are the plaintiffs to be subject to criticism and rebuke even if they pursued “deep pockets?” Explain your response.

The term “deep pockets” refers to the fact that Walmart (as well as CVS and Walgreens, for that matter) is financially capable of paying for the damages award. For a plaintiff (and a plaintiff’s attorney, who typically works on a contingency fee and does not get paid unless the plaintiff recovers the verdict), nothing can be quite so frustrating as to go through the complex and time-consuming process of litigation, only to realize upon execution of the judgment that the defendant has assets that can only partially pay the judgment amount, or that cannot pay the judgment amount at all.

In your author’s opinion, the plaintiffs should not be subject to criticism and/or rebuke for pursuing “deep pockets.” In our adversarial system of justice, it is the ethical obligation of plaintiff’s counsel to pursue the party or parties responsible for the plaintiff’s harm, and if that happens to be some of the largest retailers in the United States, so be it. It is the court’s responsibility to determine whether defendants are liable for harm, and if so, the extent of damages for which the defendants are responsible.