The pharmacies told to pay Trumbull County $344.4 million over 15 years for their part in the opioid epidemic have appealed the decision, which they promised to do when it was handed down in August.

Jurors in the civil case filed by Lake and Trumbull counties voted unanimously in the summer to hold Walmart, CVS and Walgreens liable for creating a public nuisance and fueling the opioid epidemic. In August, U.S. Judge Dan Polster of the Northern Ohio District Court ordered the retail pharmacy chains to pay a combined $650 million over 15 years to fund abatement plans in the two counties.

On Dec. 1, the attorneys for the pharmacies filed a brief with the U.S. 6th Circuit Court of Appeals asking for that decision to either be thrown out or a new trial ordered. The pharmacies believe they are paying to remediate harms caused by others.

The brief names several problems with the trial and subsequent ruling, and claims that the court was posed to punish the pharmacies from the beginning.

“From the outset of the (litigation), the district court has stated that it shares the Counties’ desire to use this litigation to address the larger opioid crisis,” the brief states. “At the initial hearing — before any evidence or argument — the court tellingly asserted that ‘everyone shares some of the responsibility, and no one has done enough to abate it,’ including ‘the pharmacies.’ The court expressed its goal to ‘do something meaningful to abate this crisis’ by ensuring ‘that we get some amount of money to (the plaintiffs) for treatment.’ In the name of that goal, the court has been willing to overlook one defect after another.”

One of these defects, according to the brief, is that the Ohio Public Liability Act bars liability for any common law public nuisance claim based on, among other things, marketing, distribution or sale of a product. Yet, the counties’ complaint states that the pharmacies created and maintained a public nuisance by marketing, distributing and selling prescription opioids.

A common law nuisance claim is most commonly used for physical intrutions into a community, such as chemical spills into a river or toxic fumes from a factory.

The pharmacies also claim that Ohio nuisance law requires either unlawful conduct or intentional culpable conduct. The counties argued that two federal regulations impose a broad duty on pharmacists from filling prescriptions that might be misused. The pharmacies state in the brief that the regulations do not require pharmacies to establish systems to predict and prevent the diversion of opioids by third parties.

“The pharmacies were thus held liable for violating a federal rule that does not exist,” the brief states. Therefore, it states the case should not have seen the inside of a courtroom.

But, it did see the inside of a courtroom and the brief points out problems there as well. An especially egregious one, according to the brief, is that one juror conducted his own outside research on one of the pharmacies’ witnesses, then passed a flyer around to the other jurors about it. This juror was dismissed, but the brief claims this should have resulted in an automatic mistrial.

Beyond the problems with the trial, the attorneys for the pharmacies also have problems with the abatement. The brief states the “sweeping statement” was unprecedented. The jury found the “oversupplying of legal prescription opioids and diversion of those opioids into the illicit market outside of appropriate medical channels” as the nuisance. But, the abatement is much broader: the opioid epidemic as a whole.

“The award funds everything from treatment of opioid addiction to needle exchanges to additional drug courts, and far exceeds the traditional equitable authority of federal courts,” the brief states.

The brief points out that no abatement was given for prescribing physicians, even though that is what the county says is the problem.

The counties have until Feb. 14, 2023, to file a brief in response.

escott@tribtoday.com