Opioid verdict opens up question of liability
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Thousands of local governments and plaintiff attorneys are seeking to extort companies in the drug supply chain by holding them liable for the opioid epidemic. Now armed with a jury verdict, a federal judge is holding Walgreens, Walmart and CVS hostage to a settlement. A jury in a bellwether case in Ohio found the three pharmacy chains liable for creating a public nuisance by filling opioid prescriptions. The companies say they plan to appeal. Since the multidistrict litigation landed in his court, Judge Dan Aaron Polster has pushed the defendants to pay up. When the pharmacies refused, he scheduled a trial in a lawsuit involving the two Ohio counties that are the leading plaintiffs. He then stacked the deck against the pharmacies with procedural motions. The Sixth Circuit Court of Appeals criticised the judge for violating basic judicial procedure, and the pharmacies could cite his missteps in an appeal. The jury verdict also distorts product liability and public-nuisance law since opioids are legal products and pharmacies had no control over how they were used by customers. Oklahoma’s Supreme Court this month reversed a $465m judgment against Johnson & Johnson that was also based on the charge that the drugmaker created a public nuisance by marketing opioids. The pharmacies may be tempted to cut their losses. But as Johnson & Johnson showed in Oklahoma, it sometimes pays not to surrender.