Public nuisance laws in opioid cases give hope to both sides

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Similar arguments were used in two other cases — in California and Oklahoma — that went in favor of the industry in the weeks before the Ohio jury’s decision. Given those decisions, there is no guarantee that Tuesday’s verdict in the case brought by Lake and Trumbull counties against CVS, Walgreens and Walmart will hold up on appeal or lead to similar decisions elsewhere. “There’s been a variety of different decisions lately that should give us reason to be cautious about what this really means in the grand scheme,” said Kevin Roy, chief public policy officer at Shatterproof, which advocates for solutions to the nation’s addiction and overdose crisis.

The reason is the central argument — that pharmacies created a “public nuisance” by dispensing an overwhelming quantity of prescription painkillers into each county. Thousands of state and local governments have sued drugmakers, distributors and pharmacies over a crisis that has contributed to more than 500,000 overdose deaths in the U.S. over the past two decades. The lawsuits generally center on claims the companies created public nuisances by interfering with the rights of the public through the way they marketed, shipped and sold the drugs — feeding the addictions of some patients and providing pills later diverted to the black market. The industry argues it did nothing illegal and that public nuisance laws simply don’t apply to prescribing and distributing prescription painkillers.

“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,” Walgreens spokesperson Fraser Engerman said in a statement. “The plaintiffs’ attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable.” Public nuisance claims are typically used to address local concerns like blighted homes, illegal drug-dealing or dangerous animals. Such claims were used in lawsuits states brought against tobacco companies in the 1990s, but those led to settlements rather than trials.

Lawyers representing the counties and other local governments involved in the broader universe of opioid lawsuits said the companies have been complicit in creating local public health emergencies by opening more locations, flooding communities with pills and facilitating the flow of opioids into a secondary market. In Trumbull County alone, roughly 80 million prescription painkillers were dispensed between 2012 and 2016 — equivalent to 400 for every resident. In Lake County, it was some 61 million pills. Rev. Barbara Holzhauser has seen the flood of opioids tear the seams of her community. She has been on the receiving end of too many calls telling her of another overdose death and has officiated at many of those funerals.

“In almost every situation the person, just like my nephew, has tried to get well and has fallen back into it,” said Holzhauser, whose nephew died from an overdose eight years ago. An assistant minister at Mentor United Methodist Church, she said the crisis has been devastating across Lake County, a mix of blue collar and affluent suburban neighborhoods just east of Cleveland. Holzhauser said she was glad the county was doing something to hold the drug industry accountable. “I can’t think of anyone that I know that hasn’t been affected by it somehow,” she said.

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