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Giant Eagle to remain as defendant in opioid suit

Judge says facts show pharmacy contributed to health crisis

WARREN — Giant Eagle won’t be allowed to withdraw from a lawsuit alleging responsibility for the opioid crisis, which is scheduled to go to trial Oct. 1 in federal court in Cleveland.

The case, filed by Trumbull and Lake counties, also names Walmart, Walgreens and CVS. Rite Aid was a defendant, but the company last week reached a settlement of $1.5 million with Trumbull County commissioners.

Giant Eagle asked that Ohio Northern District Judge Dan Aaron Polster release it from the suit in July — a motion the judge denied this month.

The company argued it should be entitled to “safe harbor” immunity because it “performed in accordance with its regulatory obligations at all times,” according to court filings.

The business met standards for the Drug Enforcement Agency and the Ohio Board of Pharmacy, including dispensing and security systems, the company states in its motion.

And because it met the standards, it should be immune from “nuisance liability,” the filing states.

“Giant Eagle justifiably relied on these agencies’ repeated determinations in building, maintaining and improving its anti-diversion controls,” the motion states. “The counties’ attempt to retroactively change the results of Giant Eagle’s 100-plus regulatory inspections from ‘pass’ to ‘fail’ also violates Giant Eagle’s due process rights because Giant Eagle never received ‘fair notice’ that the agencies’ determinations could or would be changed based solely on the opinion of hired experts in private litigation a decade later.”

The counties “cannot” prove Giant Eagle’s distribution of the controlled opioids was the “proximate cause” of the crisis, the filing argues.

Polster didn’t find merit with the arguments.

“Despite having received passing grades from government inspections, there are material facts in dispute that, when viewed in a light most favorable to (the counties), would allow a jury to find (Giant Eagle) were not in compliance with the (Controlled Substances Act) and their actions substantially contributed to a public nuisance in Lake and Trumbull counties,” he wrote.

The plaintiffs have evidence that the company’s systems were “incapable of stopping suspicious orders before shipping, and the company knew this. The fact that audits by the DEA and OBOP inspectors did not reveal alleged serious compliance deficiencies does not now insulate the (defendants),” Polster states.

There is evidence the defendants “ignored” threshold reports from their monitoring system and sent out orders that violated the threshold “such as by sending 21,500 units of generic hydrocodone to a single pharmacy in Trumbull County when the chain-wide threshold was 4,895 units, (and) the smaller figure already being triple the size of a national monthly average.”

The counties claim the retail pharmacies helped pump addictive prescription pills into the community in an irresponsible way that ignored safeguards in order to make money. The pharmacies and the other companies involved in the drug manufacturing, marketing and distribution of the pills helped spur a wave of opioid addiction, which has and is costing millions to address, the counties argue.

Giant Eagle to remain as defendant in opioid suit

WARREN — Giant Eagle won’t be allowed to withdraw from a lawsuit alleging responsibility for the opioid crisis, scheduled to go to trial Oct. 1 in federal court in Cleveland.

The case, filed by Trumbull and Lake counties, also names Walmart, Walgreens and CVS. Rite Aid was a defendant, but the company last week reached a settlement of $1.5 million with Trumbull County commissioners.

Giant Eagle asked that Ohio Northern District Judge Dan Aaron Polster release it from the suit in July — a motion the judge denied this month.

The company argued it should be entitled to “safe harbor” immunity because it “performed in accordance with its regulatory obligations at all times,” according to court filings.

The business met standards for the Drug Enforcement Agency and the Ohio Board of Pharmacy, including dispensing and security systems, the company states in its motion.

And because it met the standards, it should be immune from “nuisance liability,” the filing states.

“Giant Eagle justifiably relied on these agencies’ repeated determinations in building, maintaining, and improving its anti-diversion controls,” the motion states. “The counties’ attempt to retroactively change the results of Giant Eagle’s 100-plus regulatory inspections from ‘pass’ to ‘fail’ also violates Giant Eagle’s due process rights because Giant Eagle never received ‘fair notice’ that the agencies’ determinations could or would be changed based solely on the opinion of hired experts in private litigation a decade later.”

The counties “cannot” prove Giant Eagle’s distribution of the controlled opioids was the “proximate cause” of the crisis, the filing argues.

Polster didn’t find merit with the arguments.

Read MORE in Thursday’s VINDICATOR.

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