A judge wants to hold pharmacies liable for opioid prescriptions they were obligated to fill

See Even Walmart Deserves a Trial by Michael I. Krauss. Mr. Krauss is a professor emeritus at George Mason’s Scalia Law School and author of “Principles of Product Liability.”

Excerpts:

"in the bellwether trial set to begin in October, a broader ground of liability is being advanced. Attorneys for Ohio’s Lake and Trumbull counties are suing four pharmacy chains—CVS, Walgreens, Walmart and Giant Eagle—for damages they allegedly caused by filling “too many” opioid prescriptions."

"the MDL [multidistrict litigation] plaintiffs in next week’s case aren’t the users of the medicines. They are two local governments that have spent money to confine and treat opioid addicts. Twisting old case law that held polluters of city streets liable, these governments claim that the presence of too many opioids in the counties constitutes a “public nuisance.” Plaintiffs have reached settlements with several major pharmaceutical manufacturers, which were plausibly accused of creating the “nuisance” by fraudulently understating the addiction risks of opioids, thereby tricking regulators and physicians into approving the drugs and writing prescriptions. 

But pharmacy chains vigorously deny any such misfeasance and argue that they would have been legally vulnerable had they refused to dispense a prescribed drug. The chains maintain that outlaw drug gangs, pill mills and cheaper synthetic opioids (typically smuggled in from Mexico) have fueled the opioid epidemic. None of those criminals are being sued."

"Walmart, by the way, fills less than 4% of prescriptions in the two Ohio counties, where CVS has 14 outlets and Walgreens 13. The chains note that prescriptions with “red flags”—forgeries, massive over-prescriptions from the same doctor, other warning signs—generally come from small, independent pharmacies that are in cahoots with “pill mills.” Judge Polster nevertheless decided to restrict next week’s test trials to the major chains, stating that “I don’t think you should be cluttering these trials up with too many defendants.”"

"Due process requires that judges apply the law, not that they solve social problems by essentially taxing selected companies. Several of Judge Polster’s pretrial rulings, including one that purported to impose a “negotiating class” precommitted to a settlement, have already been overruled by the Sixth U.S. Circuit Court of Appeals."