Jury Upholds Public Nuisance As Basis for Opioid Lawsuits

A landmark jury verdict late last month is likely to make it easier for hundreds of private lawsuits filed in the District of Columbia, Maryland and Virginia to go forward against companies that make or distribute opioids.

The verdict in federal court in Ohio makes pharmacy chains CVS, Walgreens and Walmart liable for encouraging the opioid epidemic that kills thousands of Americans each year. 

It is the first judgment that supports lawsuits based on the tort of public nuisance.

Unlike other recent judgments in Oklahoma and California state courts, the U.S. District Court in Cleveland found that the pharmacies created a public nuisance by selling a dangerous drug despite its known risks of addiction, overdose and death.

The pharmacies "engaged in intentional and/or illegal conduct [that] was a substantial factor in producing the public nuisance," according to the verdict form.

Public nuisance laws in the Washington area give individuals a private right of action if they suffered an injury different from the rest of the public.

The Ohio plaintiffs blamed the pharmacies for making opioids available to consumers in amounts that far exceeded their medical needs. The pharmacies’ business practices “produced a permanent or long-lasting effect upon the public right,” their Aug. 19, 2021 court filing says. 

The trial was the first to hold pharmacies responsible for the opioid epidemic. Other lawsuits have named opioid distributors and manufacturers as defendants.

All three of the pharmacies said they would appeal. They argued during the trial that they complied with all laws and Food and Drug Administration regulations.

If anyone other than the patients were to be blamed, it was the doctors, they said.

The consolidated cases are The cases are County of Lake v. Purdue Pharma LP et al., case number 1:18-op-45032, County of Trumbull v. Purdue Pharma LP et al., case number 1:18-op-45079, and In re: National Prescription Opiate Litigation, case number 1:17-md-02804, in the U.S. District Court for the Northern District of Ohio.

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