Duane Morris Class Action Review - 2023 - Report - Page 289
named several opioid distributor defendants. This case was remanded from the
consolidated proceeding In Re National Prescription Opiate Litigation, 290 F. Supp. 3d
1375, 1378 (J.P.M.L 2017). Plaintiffs claimed that the distributors created an opioid
epidemic and caused a public nuisance. The court held that the manufacturers of the
opioids, not the distributors, were responsible for the aggressive marketing. Further, the
court found that under West Virginia law, the public nuisance law serves as a
supplement to ordinary product liability claims and does not afford plaintiffs a remedy.
According to the court, the defendants’ conduct did not establish proximate causation
based on plaintiffs’ diversion theory because the defendants had no independent control
over the medical judgment of prescribing doctors.
That decision stands in sharp juxtaposition to previous settlements from the same
defendants in West Virginia, where distributors reached multi-million dollar settlements
with the plaintiffs. The decision also runs contrary to a recent settlement between CVS
and Walgreens where they agreed to $5 billion to settle opioid claims against the two
pharmacy chains nationwide. Examining some of the claims in the opioid litigation
provides useful context and insight into the generally plaintiff-friendly rulings that may
have prompted swift settlements as opposed to individual trials.
In City Of San Francisco, et al. v. Purdue Pharma L.P., 2022 U.S. Dist. LEXIS 142962
(N.D. Cal. Aug. 10, 2022), the case was initially filed and named a slew of defendants in
the supply chain, but by the time of trial, only four of them remained. Id. at *11. During a
two-month bench trial, three of the defendants settled, and only Walgreens remained in
the case at the close of trial. Id. The trial centered around the plaintiff’s sole public
nuisance claim. Id. The court focused its findings of fact around the policies and
procedures that Walgreens had in place that governed “red flag” prescriptions, the lack
of support, resources, and training for its pharmacists, corporate awareness of the
problem, all of which led to dispensing the aforementioned “red flag” prescriptions
without performing adequate due diligence. Id. at *145-77.
The court distinguished the Huntington decision and noted that the distributor
defendants complied with their obligations to halt and perform due diligence on the “red
flag” prescriptions, whereas Walgreens did not. Id. at *197. Thereafter, the court found
that based on an extensive social history of the opioid epidemic in San Francisco,
Walgreens interfered with the health and safety of the community sufficient for a finding
that it violated California’s public nuisance law. Id. at *205.
Another adverse ruling against a pharmacy defendant is found in County Of Lake, Ohio,
et al. v. Purdue Pharma, L.P., 2022 U.S. Dist. LEXIS 147709 (N.D. Ohio Aug. 17, 2022).
This case involved a public nuisance claim against CVS, Walmart, and Walgreens, and
was a bifurcated proceeding that first proceeded before a jury regarding liability, and
then proceeded before the judge to determine what actions the defendants must do to
abate the harm found in phase one of the trial. Id. at *62. The jury found that the
defendant’s improper dispensing conduct was a substantial factor in causing the public
nuisance. Id. at *143.
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Duane Morris Class Action Review – 2023
