A federal judge this week denied a request by pharmacy chains to throw out a lawsuit over the opioid crisis brought by Lake and Trumbull counties.
U.S. District Judge Dan Polster’s Thursday ruling allows the two counties to move ahead with preparations for a May 2021 trial in federal court, to be held in Cleveland.
The counties are accusing the pharmacies of creating a “public nuisance” by failing to control the flow of painkillers into Ohio communities. It’s been described as a creative legal argument – one that the pharmacies sought to challenge in their motion to dismiss the case.
Attorneys for the pharmacies argued the counties should have built their argument on existing state laws, rather than a novel interpretation of public nuisance. The defendant companies include Walmart, CVS, Rite Aid, Walgreens and Giant Eagle.
“The Ohio General Assembly has identified the available nuisance remedies,” the companies’ attorneys wrote. “In no event can political subdivisions seek a different remedy on a boundless common law theory.”
Attorneys for the plaintiff local governments celebrated Polster’s ruling in a statement released Thursday.
“Now, more than ever, communities need opioid epidemic relief resources as overdoses spike amid the global pandemic,” they wrote. “We will continue our pursuit for transparency and accountability to ensure pharmacy defendants permanently change their practices and supply the funds necessary to support recovery efforts in the over 2,700 communities we represent.”
Two other opioid cases are scheduled to go to trial this fall. Polster set a trial date of Oct. 19 for a lawsuit by Cabell County and Huntington, West Virginia, against AmerisourceBergen, Cardinal Health and McKesson. Cuyahoga and Summit counties go to trial in Cleveland against pharmacy chains Nov. 9.
Opioid manufacturers and distributors reached a series of settlements last year with Cuyahoga and Summit counties, the first two plaintiffs out of thousands to take their claims against drug companies to trial in the wide-ranging federal multidistrict litigation. Those settlements culminated with a $260 million deal announced on the day trial would have begun last year.
But a nationwide settlement of all pending opioid lawsuits has remained out of reach, Case Western Reserve University Law professor Andrew Pollis said.
“Despite everybody’s diligent efforts to try to get to a settlement – Judge Polster’s, the defendants’, the various attorneys general and of course the plaintiffs’ – we haven’t really seen one materialize,” Pollis said, “except the one-off, sort of cherry-picked settlements we see occur in the particular cases that are scheduled for trial.”
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