The Ohio Supreme Court that the state's product liability law prohibits counties from bringing public nuisance claims against national pharmaceutical chains as they did as part of national opioid litigation, a decision that could overturn a $650 million judgment against the pharmacies.
An attorney for the counties called the decision 鈥渄evastating.鈥�
Justices were largely unanimous in their interpretation of an arcane disagreement over the state law, which had emerged in a lawsuit brought by Lake and Trumbull counties outside Cleveland against CVS, Walgreens and Walmart.
The counties won their initial lawsuit 鈥� and were awarded $650 million in damages by a federal judge in 2022 鈥� but the pharmacies had disputed the court's reading of the Ohio Product Liability Act, which they said protected them from such sanctions.
In an opinion written by Justice Joseph Deters, the court found that Ohio state lawmakers intended the law to prevent 鈥渁ll common law product liability causes of action" 鈥� even if they don't seek compensatory damages but merely 鈥渆quitable relief鈥� for the communities.
鈥淭he plain language of the OPLA abrogates product-liability claims, including product-related public-nuisance claims seeking equitable relief,鈥� he wrote. 鈥淲e are constrained to interpret the statute as written, not according to our own personal policy preferences.鈥�
Two of the Republican-dominated court's Democratic justices disagreed on that one point, while concurring on the rest of the judgment.
鈥淎ny award to abate a public nuisance like the opioid epidemic would certainly be substantial in size and scope, given that the claimed nuisance is both long-lasting and widespread,鈥� Justice Melody Stewart wrote in an opinion joined by Justice Michael Donnelly. 鈥淏ut just because an abatement award is of substantial size and scope does not mean it transforms it into a compensatory-damages award.鈥�
In a statement, the plaintiffs' co-liaison counsel in the national opioid litigation, Peter Weinberger, of the Cleveland-based law firm Spangenberg Shibley & Liber, lamented the decision.
鈥淭his ruling will have a devastating impact on communities and their ability to police corporate misconduct," he said. 鈥淲e have used public nuisance claims across the country to obtain nearly $60 billion in opioid settlements, including nearly $1 billion in Ohio alone, and the Ohio Supreme Court鈥檚 ruling undermines the very legal basis that drove this result.鈥�
But Weinberger said Tuesday's ruling would not be the end, and that communities would continue to fight 鈥渢hrough other legal avenues.鈥�
"We remain steadfast in our commitment to holding all responsible parties to account as this litigation continues nationwide,鈥� he said.
In his 2022 ruling, U.S. District Judge Dan Polster said that the money awarded to Lake and Trump counties would be used to the fight the opioid crisis. Attorneys at the time put the total price tag at $3.3 billion for the damage done.
Lake County was to receive $306 million over 15 years. Trumbull County was to receive $344 million over the same period. Nearly $87 million was to be paid immediately to cover the first two years of payments.
A jury returned a verdict in favor of the counties in November 2021, after a six-week trial. It was then left to the judge to decide how much the counties should receive. He heard testimony the next May to determine damages.
The counties convinced the jury that the pharmacies played an outsized role in creating a public nuisance in the way they dispensed pain medication. It was the first time pharmacy companies completed a trial to defend themselves in a drug crisis that has killed a half-million Americans since 1999.
