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Lessons in compliance are learned from opioid lawsuits against retail pharmacy companies

According to court records, more than 3,000 opioid-related cases have been filed in state and federal courts with broad allegations that the actions and inactions of pharmaceutical companies, distributors, and retail pharmacies "led to a severe oversupply of prescription opioids, which ultimately created a public nuisance." Judge Dan Polster of the U.S. District Court for the Northern District of Ohio is overseeing the  coordinated multidistrict opioid case.

As test cases for upcoming opioid-related litigation, the combined cases in this initial round of litigation are known as "bellwether" trials. A national opioid-related agreement has not yet been reached by any retail pharmacy chains, in contrast to certain significant drugmakers and distributors.

On August 17, Judge Polster ordered CVS, Walgreens, and Walmart to pay a total of roughly $650.6 million over 15 years to two Ohio counties—including an immediate payment of nearly $87 million to cover the first two years of the abatement remediation plan—in the first case to levy damages against retail pharmacy chains following a jury trial last fall.

The jury's finding that CVS, Walgreens, and Walmart "engaged in intentional and/or illegal conduct, which was a substantial factor in producing the public nuisance" led to the damages award, according to court documents, which also stated that each retailer "caused a significant and ongoing interference with a public right to health or safety."

The defendants "largely ignored the court’s directives to submit their own proposed abatement plan," according to Judge Polster, who expressed frustration during the hearing. Instead, the defendants submitted "three paragraphs suggesting a proper abatement remedy would be comprised of drug takeback programs to facilitate disposal of diverted opioids—and nothing more."

Pharmacies chains' corporate counsel should heed Judge Polster's advice: if that is the defense strategy chosen, be ready to present evidence, through witnesses or the cross-examination of experts, "that would support a finding that drug takeback programs, standing alone, would effectively abate the nuisance."

Before going to trial, the counties struck agreements with two additional drugstore defendants: Rite Aid and Giant Eagle. The firms gave Trumbull County a total payment of more over $2 million; Lake County's payment was not made public.

CVS, Walgreens, and Walmart disagreed with the jury's alleged egregious misapplication of the public nuisance legislation. Each will make an appeal.

"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," said Walmart. 

"Pharmacists fill legal prescriptions written by [Drug Enforcement Administration]-licensed doctors who prescribe legal, [Food and Drug Administration]-approved substances to treat actual patients in need," CVS claimed in an emailed statement.

Now that Walgreens has lost two significant opioid-related cases, it is appealing both of them.

Fraser Engerman, senior director of external communications at Walgreens, stated, "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."

Engerman continued, "The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable. We look forward to the opportunity to address these issues on appeal."

On August 10, U.S. District Judge Charles Breyer rendered a verdict in favor of a plaintiff in the multidistrict opioid litigation's first bench trial. Walgreens was held responsible for "substantially contributing" to San Francisco's opioid problem by the Northern District of California District Court. The sum that the business must pay to the city of San Francisco will be decided at the trial's subsequent phase.

"Walgreens pharmacies in San Francisco dispensed hundreds of thousands of red-flag opioid prescriptions without performing adequate due diligence. Tens of thousands of these prescriptions were written by doctors with suspect prescribing patterns," as per the court records from the period 2006-2020.

"As a result of Walgreens’ 15-year failure to perform adequate due diligence, plaintiffs proved that it is more likely than not that Walgreens pharmacies dispensed large volumes of medically illegitimate opioid prescriptions that were diverted for illicit use and that substantially contributed to the opioid epidemic in San Francisco," Judge Breyer said.

Additionally, according to court records, "Walgreens did not provide its pharmacists with suffi