In connection with a lawsuit alleging pharmacies are creating a “public nuisance” by dispensing opioid prescriptions, the Ohio Chamber of Commerce stood behind pharmacies in the state. The chamber argued it should instead be a “product liability” claim.
The lawsuit is one of many across the country that allege that “opioid manufacturers, opioid distributors and opioid-selling pharmacies and retailers acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking, and often becoming addicted to, opiates,” according to court documents.
The case in Ohio pits Purdue Pharma, Walgreens, Walmart and CVS stores against Trumbull County and Lake County, where the counties claim the companies “created, perpetuated and maintained” the opioid epidemic by “filling prescriptions for opioids without controls in place to stop the distribution of those that were illicitly prescribed.”
Doing so caused “an absolute public nuisance,” according to attorneys for the counties.
The U.S. Court of Appeals for the Sixth Circuit is considering the appeal because a lower court ruled in favor of the counties, saying Purdue and the pharmacies should provide $650 million in damages because the “oversupply of legal prescription opioids … was a public nuisance.”
The Ohio Supreme Court got involved after a federal appeals court asked the state’s highest court to decide whether state law on public nuisance claims can be applied to product liability law.
The state chamber of commerce says claims that dispensing of opioids is a public nuisance are a misuse of the legal standard, and state product liability statutes “invalidate the county’s public nuisance claims.’”
Chamber president and CEO Steve Stivers, a former legislator, said the amicus brief — or “friend of the court” brief — was filed “to stop the misapplication of our statutes from harming Ohio businesses and our state’s legal climate.”
An amicus brief is typically filed by parties who have an interest in the case, but are not a directly involved party.
Stivers has particular interest in the case since he sponsored legislation in 2004 that changed the way product liability cases are litigated.
In a statement, the chamber said the claims by the two counties should “proceed under Ohio’s product liability laws rather than relying on a public nuisance claim, which is traditionally reserved for litigation based upon someone’s use of land.”
The amicus brief used the example of a lawsuit filed against Sherwin Williams for manufacturing lead-based paint, after which the Ohio General Assembly in 2006 passed a law “to stop product liability lawsuits from masquerading as public nuisance lawsuits and to clarify all public nuisance claims based upon the sale of a product are subject to the (Ohio Product Liability Act),” referencing the name given to Stiver’s original legislation.
The chamber filed the brief jointly with the Ohio Alliance for Civil Justice, which said in the brief it “supports stability and predictability in the civil justice system in order for Ohio’s businesses and other to know what risks they assume as they carry on commerce in this state.”
The Buckeye Institute also filed an amicus brief in the case, agreeing that state law did not support the use of public nuisance law in an opioid distribution case. The institute also argued that the court should limit how much government plaintiffs, in this case the counties, receive in legal compensation, and for what purpose.
“Allowing governments to fund themselves through litigation rather than legislation and appropriations creates its own risk of addiction,” attorneys for the institute wrote.
This story was originally published by the Ohio Capital Journal and republished here with permission.
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This article appears in Jan 10-23, 2024.
