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The Ohio Supreme Court is set to address a novel and unresolved legal question: Can the sale of opioids constitute a public nuisance?
The inquiry comes in the wake of a significant ruling where two Ohio counties secured a $650 million judgment against three pharmacies—CVS, Walgreens, and Walmart—for their role in fueling the opioid epidemic.
With this case, Ohio finds itself at the center of a legal battle over accountability for an epidemic that kills more than 150 people every day in the United States.
What is a public nuisance claim?
Public nuisance claims originated in medieval England, where the Crown used them to remove obstructions from roads and waterways.
Over the centuries, its scope has broadened dramatically. Today, public nuisance legal arguments have been leveled against tobacco companies, gun manufacturers, and, most recently, opioid distributors and producers.
The essence of the public nuisance claim is that the companies involved in the production and distribution of opioids have jeopardized public health and welfare.
The Opioid litigation before the Ohio Supreme Court
Lake and Trumbull counties sued CVS, Walgreens, and Walmart arguing that the companies fueled the opioid epidemic by failing to ensure opioid prescriptions were valid and allowing excessive quantities of pain pills to flood the black market.
Pharmacy operators denied the allegations, arguing that they took steps to guard against diversion of pills and that others, including doctors and regulators, were to blame for the epidemic.
A federal jury sided with the plaintiffs and issued a $650 million verdict against the pharmaceutical companies. The companies subsequently appealed the verdict, and the federal appeals court asked the Ohio Supreme Court to weigh in first.
The crux of the appeal to the Ohio Supreme Court lies in whether the Ohio Product Liability Act (OPLA)—which generally precludes public nuisance claims related to the sale of products—applies to this case. The pharmacies assert that under the OPLA, their actions cannot constitute a public nuisance. In contrast, the counties argue that the pharmacies’ practices, particularly their failure to flag suspicious orders, went beyond mere product sales and directly contributed to the public health crisis, thereby falling outside the scope of the OPLA.
Implications of the Ohio Supreme Court’s decision
The decision of the Ohio Supreme Court will likely have far-reaching implications. A ruling in favor of the counties could open the floodgates for similar public nuisance claims against not only opioid manufacturers and distributors but also other industries whose products might be deemed to harm public welfare. Conversely, a decision favoring the pharmacies could significantly narrow the scope of public nuisance doctrine, reinforcing the preeminence of product liability law in such matters.
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