Nine Figure Opioid Verdict for Ohio Counties in Peril After Recent Supreme Court Decision

by Brianna Prislipsky, Esq.

In a recent decision, the Ohio Supreme Court has likely dealt a death knell to an enormous judgment rendered in favor of local communities to abate damage caused by the opioid epidemic.  In its opinion, the Supreme Court of Ohio found that the public nuisance theory relied upon by the counties was abrogated by Ohio product liability law and could not be used to pursue claims against national pharmacy chains, including Walgreens, CVS, and Walmart. See, In re Natl. Prescription Opiate Litigation, Slip Opinion No. 2024-Ohio-5744 

The action brought by Lake and Trumbull County is one of dozens filed across the United States which allege that opioid manufacturers, distributors, and pharmacies and retailers which sold opioids acted in concert to mislead medical professionals into prescribing opioids, resulting in millions of Americans developing substance abuse disorders.  The trial court denied various dispositive motions filed by the pharmacies, and the case went to trial in the Northern District of Ohio, where a jury rendered a verdict in the county’s favor. 

After the trial court fashioned an abatement plan which would have cost the pharmacies hundreds of millions of dollars, the pharmacies appealed from that decision, arguing that the Ohio Product Liability Act (“OPLA”), Ohio Revised Code § 2307.71 et seq., abrogated any common law claim of absolute public nuisance resulting from the sale of a product such as opioids, thus precluding relief. 

The Sixth Circuit Court of Appeals certified the question to the Ohio Supreme Court, asking whether the counties’ “public nuisance” claims were abrogated by the OPLA. The Court answered the certified question by concluding the OPLA precluded any claims related to the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, and sale of prescription medication.  While the Court noted that the devastation experienced by Ohio citizens has had “far reaching consequences for their communities and for the state as a whole,” the court was without power to interfere with the legislature’s determinations.

Though all seven justices concurred in the Court’s ultimate judgment, Justice Fischer concurred in judgment only, and Justices Stewart and Donnelly issued a partial dissent which argued that claims for equitable relief under a public-nuisance theory should not be abrogated by the OPLA.

Following the Ohio Supreme Court’s decision, the case will be remanded back to the Sixth Circuit for further proceedings consistent with its determinations.  There, the Circuit Court will determine whether the Ohio Supreme Court’s ruling requires that the jury verdict in favor of the counties be vacated in full based upon the determination that their public nuisance cause of action was abrogated. 

If you have any questions about the impact of this ruling on ongoing litigation or matters of products liability in general, please feel free to reach out to a member of our Products Liability, Medical Malpractice, or Appellate Practice Groups.