By Jan Hoffman
A federal judge this week ordered three of the nation’s largest pharmacy chains — CVS, Walgreens and Walmart — to pay $650.5 million to two Ohio counties, ruling that the companies must be held accountable for their part in fueling the opioid epidemic.
The decision is a companion piece to a November jury verdict that found the companies had continued to dispense mass quantities of prescription painkillers over the years while ignoring flagrant signs that the pills were being abused.
The ruling is the first by a federal judge that assigns a firm money figure against the pharmacy chains for their roles in the opioid crisis. Here, the judge, Dan Polster of the U.S. District Court in northern Ohio, who has overseen more than 3,000 cases in the opioid litigation, ruled that the pharmacies bore responsibility for one-third of the amount that Ohio’s hard-hit Lake and Trumbull counties need to address the continuing damage wrought by the epidemic.
Drug manufacturers and drug distributors, two other groups in the pharmaceutical chain that have been sued, also bear responsibility, he said.
Mark Lanier, the Texas lawyer who led the plaintiffs’ trial team, said of the pharmacy chains, “These companies are rending the fabric of society apart. They should not only show remorse; they should show they need to rectify what they’ve done. And they won’t do it. So the judge is doing it.”
Representatives for CVS, Walgreens and Walmart expressed their disappointment in Polster’s ruling and said their companies would appeal. Fraser Engerman, a spokesperson for Walgreens, described the judge’s analysis as flawed and said the company would appeal. “We never manufactured or marketed opioids, nor did we distribute them to the ‘pill mills’ and internet pharmacies that fueled this crisis,” he said.
Michael DeAngelis, a CVS spokesperson, also said the company would appeal, adding, “Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need.”
Randy Hargrove, a spokesperson for Walmart, said, “Instead of addressing the real causes of the opioid crisis, like pill mill doctors, illegal drugs and regulators asleep at the switch, plaintiffs’ lawyers wrongly claimed that pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship. ”
At trial, Lanier’s experts said the counties would need more than $3 billion, which he described as an amount equivalent to “the sun, the moon and the stars.” Polster, however, had agreed only to “the moon,” Lanier added, acknowledging that he was nonetheless quite pleased with that result.
Adam Zimmerman, who teaches complex litigation at Loyola Law School, Los Angeles and who has closely followed the national opioid litigation, said, “Just imagine the costs for the other 3,000 similar plaintiffs in this litigation, or the nearly 20,000 incorporated cities around the country. With those kinds of numbers, it’s no wonder so many defendants have chosen to settle out of court.”
The money must be paid in installments over 15 years, the judge ruled. He also ordered the companies to comply with a strict series of monitoring and reporting rules within 90 days to ensure that they improve how they dispense opioids and spot potential problems. Those requirements include putting in place hotlines for anonymous tips and policies for internal compliance committees.
Polster noted that both CVS and Walgreens had already agreed to such restrictions in a May settlement of opioid claims with the state of Florida. Although such practices should already exist in accordance with federal regulations, this order gives additional oversight to an outside administrator.
Polster’s ruling not only sharply scolds the pharmacy chains for their business dealings in the two Ohio counties but also implicitly stands as a warning to these companies in other pending cases. Of the three groups of defendants, the pharmacy chains have been the most reluctant to settle cases.
Earlier this month, for example, the nation’s big three distributors settled with more than 100 West Virginia counties and cities for $400 million for their business practices during the opioid epidemic. Loosely comparing that settlement to Polster’s ruling, Lanier said the takeaway was that “it’s a heck of a lot cheaper to settle than it is to lose at trial.” Referring to the pharmacies, he added, “I mean, they could have settled this for a heck of a lot less than they’re doing now.”
Even after the Cleveland jury found against them, Polster noted, the defendants “largely ignored” his orders to submit remedial proposals of their own. In contrast to the voluminous plans offered by the counties, the judge wrote, the pharmacy chains’ suggestions for addressing the continuing epidemic amounted to a scant three-paragraph description of drug take-back programs.
Walgreens could be in line to pay yet another heavy award for its practices during the opioid epidemic. Earlier this month, a federal judge who had presided over a bench trial in a case brought by the city and county of San Francisco issued a blunt ruling against the company, holding it responsible for looking the other way while the wreckage brought by opioid abuse piled up. A hearing to determine what Walgreens must pay to rebuild budgets depleted by the epidemic has yet to be scheduled.