OTHER OPINIONS: Verdict Against Pharmacies Distorts Product Liability Law | Opinion

Thousands of local governments and plaintiff lawyers are seeking to extort companies in the drug supply chain by holding them responsible for the opioid epidemic in the country. Now armed with a jury verdict, a federal judge is holding Walgreens, Walmart and CVS hostage as part of a settlement.

That sums up Tuesday’s news that a jury in a witness case in Ohio found the big three drugstore chains responsible for creating a public nuisance by filling opioid prescriptions. The companies say they plan to appeal, but they will have to wait for Federal Judge Dan Aaron Polster, who chairs the consolidated cases, to render a separate decision on damages.

Our sources say Judge Polster separated the verdict from the monetary penalty to force the companies to settle this case and thousands more that have yet to be tried. The two Ohio counties that are the main complainants each estimated their costs related to the opioid epidemic at around $ 1 billion. The potential liability for the claims of all plaintiffs could be many times greater.

Since the multi-district litigation landed in court, Judge Polster has pushed the defendants to pay. When pharmacies refused, he scheduled a trial as part of a lawsuit involving both Ohio counties. He then stacked the game against pharmacies with procedural motions and refused to cancel the trial after a juror shared biased information against the defendants with other jurors.

The Sixth Circuit appeals court criticized the judge for violating basic legal process, and pharmacies could use his missteps in an appeal as grounds for overturning.

The jury’s verdict also distorts the product liability and public nuisance law, as opioids are legal products and pharmacies had no control over how they were used by customers. If the verdict is upheld or the companies move in, the precedent could lead to similar nuisance lawsuits across much of the U.S. economy.

Earlier this month, the Oklahoma Supreme Court overturned a $ 465 million judgment against Johnson & Johnson, also based on the charge that the drugmaker had created a public nuisance by marketing opioids. A state judge in Orange County, California also recently launched counties for public nuisance lawsuits against opioid manufacturers.

Judge Polster knows that a rule would prevent the Sixth Circuit review and the possibility of a reversal. Companies may be tempted to cut losses. But as Johnson & Johnson has shown in Oklahoma, sometimes it pays to not surrender.


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