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Ohio's highest court weighs if pharmacies distributing legal painkillers created public nuisance

Kimberly Boyles

The Ohio Supreme Court will decide in the near future whether big chain pharmacies created a public nuisance—contributing to the opioid crisis through how they sell legal prescription drugs—and can be sued and held liable on that claim.

The question of whether state law permits this particular nuisance claim stems from a lawsuit filed by Trumbull and Lake counties over the opioid epidemic. It is one of thousands of similar lawsuits against drugmakers, distributors and retailers, arguing that their processes are partly to blame for soaring addiction and overdoses nationwide.

A federal trial court in November 2021 sided with the counties, ordering the defendants to shell out $650 million in abatement remedies. That money would be funneled toward addiction treatment, emergency services training and other resources.

Walgreens, CVS Pharmacy and Walmart are just some of the defendants in the case, which was working its way through the federal appeals process. But they are asking a technical question that involves the Ohio Revised Code.

The seven justices sitting on the Ohio Supreme Court heard oral arguments Tuesday morning.

Attorney Jeffrey Wall argued, on behalf of the pharmacies, the lawsuit itself should be one arguing product liability, not public nuisance. Otherwise, Wall said, “You can sue gun manufacturers for the public nuisance of violence, energy companies for climate change, fast food, lead paint and all the rest.”

The Cornell Law School Legal Information Institute defines a public nuisance as “any conduct that interferes with the rights of the public,” like cars in the right-of-way or loud noises and bright lights.

But attorney David Frederick, on behalf of the counties, that painkillers and the way they are prescribed are unique with far-reaching challenges. “We're in such an unusual territory,” Frederick told the justices.

According to the New York Times, courts in other states including California and Oklahoma have rejected the public nuisance premise of similar lawsuits.

The Ohio Supreme Court releases decisions three to six months after cases are heard. The federal appeals process won’t move until then.
Copyright 2024 The Statehouse News Bureau.