COMMENTARY: Holding national retail chains accountable for opioid crisis

By A. Vince Colella

In 2013, “Jimmy” a 47-year-old male, was involved in a non-life-threatening auto accident. Initially, he was admitted to the hospital with a collapsed lung, neck and back pain. He was released a couple days later with a prescription for “Vicodin” (hydrocodone). Once it was determined he was not a candidate for surgery, he was treated “conservatively,” focusing primarily upon a regiment of physical therapy and opioid prescriptions. Jimmy had no history of drug abuse or addiction. However, within a year of his accident and a healthy diet of hydrocodone, Jimmy was found dead of an overdose. Jimmy is not an aberration, but rather the norm. According to the CDC, from 1999-2020, nearly 841,000 people have died from drug overdose. Opioids account for most of the deaths.

While the drug manufacturers remain the focus of public outcry, recently trial lawyers took aim at the retail pharmacy chains that distributed the drugs. In 2018, a federal lawsuit was filed on behalf of two counties in northern Ohio against CVS, Walgreens, and Walmart alleging that their retail pharmacy sale of opioids contributed to a public health crisis of epic proportion. County of Trumbull v Purdue Pharma, et. al. 1:18-op-45079; County of Lake v Purdue Pharma et. al., 1:18-op-45032 (Northern Dist. Ohio, 2018). In addition to a scathing rebuke of the retail pharmacy chains, the complaint provides a historical look at the development and growth of the opioid manufacturing and distribution industry that reads like an organized crime novel. What is painfully clear from the allegations is that the pioneers of the industry and all the participants along the distribution chain were keenly aware of the highly addictive deadly nature of opioids. More importantly, that it would create unimaginable wealth. In fact, within one year of the introduction of oxycontin, the drug was generating $1 billion per year in revenue. By 2015, oxycodone and fentanyl had combined sales of $5 billion (accounting for about 70% of the market).

Lawyers for the Ohio counties learned that CVS and Walgreens, two of the largest retail pharmacy chains, were responsible for distributing 43.9% of the prescription drugs across the country. This fact, and the data compiled on the volume of pills dispensed within the two Ohio counties alone (a total of 141 million between 2012 and 2016), provided the framework for the claims.

The case against the pharmacy chains was predicated upon a “public nuisance” theory. The Ohio lawsuit was the first of its kind to test the theory against the national chains. In a nutshell, the lawyers argued that the pharmacies failed to “flag” the high number of opioid prescriptions being written. On a more granular level, the allegations detailed the companies’ failure to monitor and report suspicious orders of prescriptions at the retail level and to implement Drug Enforcement Agency (DEA) guidelines to identify illegitimate activity and prevent “diversion” into the illegal market. Moreover, the pharmacy chains were not only derelict in their duties, but according to the lawsuit, they illicitly encouraged the prolific distribution of opioids into the market by using performance metrics. Pharmacists were rated on their “productivity,” i.e., speed of filling prescriptions, responding to calls, following up with customers to refill and pickup their prescriptions. In fact, some pharmacists were required to fill 600 scripts per shift. Lawyers for the counties pointed out that these productivity policies were in direct conflict with safe practices necessary to maintaining public safety.

Meanwhile, in 2019, Michigan’s attorney general filed a similar case against Walgreens (and others) in the Wayne County Circuit Court. In addition to alleging a public nuisance, the state also argued that the retail chain pharmacy was in violation of the Drug Dealer Liability Act (“DDLA”). The state argued that the definition of “persons” subject to the act extends beyond “street dealers,” to include corporations “who sell or distribute [opioids] in violation of state law.” [MCL691.1605] Initially, the court granted summary disposition to Walgreens and the other defendants; however, it reversed course in response to the state’s motion for reconsideration, finding that under Michigan law, “all controlled substances are defined as a nuisance whether used in connection with real or personal property.” [Order Granting Plaintiff’s Motion for Partial Reconsideration, 19-016896-NZ, 3/24/21] The court further found that the attorney general is authorized to bring an action to abate any public nuisance. The matter is scheduled to proceed to trial October 3, 2022.
Meanwhile, a 12-person jury ruled in favor of the two Ohio counties finding that the pharmacy chains helped to fuel the opioid crisis. CVS, Walgreens, and Walmart will now face a future trial on damages which the counties claim are in the billions.

All of this begs the question, “How did retail chain pharmacy executives turn a blind eye to the moral hazard of distributing known deadly opioids for the sake of generating profits?”
————————
A. Vince Colella is a co-founder of personal injury and civil rights law firm Moss & Colella.