Federal Jury Finds CVS Health, Walmart And Walgreens Contributed To Ohio's Opioid Epidemic
TROY, OH – MAY 11: A security camera lies atop a Wal-Mart Supercenter May 11, 2005 in Troy, Ohio. … [+] Wal-Mart, America's largest retailer and the largest company in the world based on revenue, has evolved into a giant economic force for the U.S. economy. With growth, the company continues to weather criticism of low wages, anti-union policies as well as accusations that it has homogenized America's retail economy and driven traditional stores and shops out of business. (Photo by Chris Hondros/Getty Images)
The decades-long national opioid epidemic is a public health emergency that created a crisis for some companies that had a role in manufacturing, selling or distributing the drug.
Today, a decision by a federal jury in Cleveland, Ohio created another opioid-related emergency for three major retailers — CVS Health, Walgreens and Walmart—when the jury found they had contributed to the crisis of opioid overdoses and deaths in two Ohio counties.
As reported by the Washington Post, "Three major retailers helped flood two Ohio counties with addictive opioids, a federal jury said Tuesday in a first-of-its-kind verdict that could serve as a possible indicator for thousands of cities and counties that blame the companies for part of the nation's opioid crisis. The three companies say they plan to appeal the verdict.
"U.S. District Judge Dan A. Polster in Cleveland is expected in the spring to decide how much the companies will pay the two counties, according to the counties' attorneys, who estimate the toll of the epidemic to cost about $1 billion for each of the counties."
What the companies are saying in response to the verdict and how they are saying it provides important lessons in crisis management and communication for corporate executives for when they are confronted by a crisis at their organizations.
Initial Crisis Response Lessons
Respond Immediately
CVS Health, Walgreens and Walmart were apparently prepared for the verdict—or at least different iterations of it. Within minutes of the decision being announced, each company issued or posted on their websites written statements with their reactions which included their reasons for disagreeing with the jury's decision.
The statements follow below. I've inserted subheads in the statements to point out some of the strategies, tactics and techniques the organizations are using in responding to the verdict.
CARVER, MASSACHUSETTS – MAY 15: A sign on the side of the CVS Pharmacy on May 15, 2020 in Carver, … [+] Massachusetts. Nine CVS locations began providing coronavirus tests in Massachusetts, issuing self swab tests to people by appointment. (Photo by Maddie Meyer/Getty Images)
State Your Opinion
Mike DeAngelis, senior director of corporate communications said, "We strongly disagree with the decision. Pharmacists fill legal prescriptions written by DEA-licensed doctors who prescribe legal, FDA-approved substances to treat actual patients in need.
Express Appreciation
"We're proud of the substantial work we've done to support our pharmacists in detecting illegitimate prescribing.
Set The Record Straight
"But the simple facts are that opioid prescriptions are written by doctors, not pharmacists; opioid medications are made and marketed by manufacturers, not pharmacists; and our health care system depends on pharmacists to fill legitimate prescriptions that doctors deem necessary for their patients.
Outline Next Steps
We look forward to the appeals court review of this case, including the misapplication of public nuisance law.
"As plaintiffs' own experts testified, many factors have contributed to the opioid abuse issue, and solving this problem will require involvement from all stakeholders in our health care system and all members of our community."
MIAMI, FLORIDA – APRIL 02: A Walgreens store is seen on April 02, 2019 in Miami, Florida. Walgreens … [+] Boots Alliance Inc. reported a fiscal second-quarter earnings that missed expectations and has slashed its full-year outlook in a reaction to the companies to report its shares plummeted 12% on Tuesday. (Photo by Joe Raedle/Getty Images)
In a statement, Fraser Engerman, senior director of external relations for Walgreens, said, "We are disappointed with the outcome of this trial.
Point Out What They Got Wrong
The facts and the law do not support the verdict. We believe the trial court committed significant legal errors in allowing the case to go before a jury on a flawed legal theory that is inconsistent with Ohio law.
Explain Your Role
"As we have said throughout this process, we never manufactured or marketed opioids nor did we distribute them to the "pill mills" and internet pharmacies that fueled this crisis.
The plaintiffs' attempt to resolve the opioid crisis with an unprecedented expansion of public nuisance law is misguided and unsustainable.
We look forward to the opportunity to address these issues on appeal before the United States Court of Appeals for the Sixth Circuit."
Discuss Next Steps
"We will appeal this flawed verdict, which is a reflection of a trial that was engineered to favor the plaintiffs' attorneys and was riddled with remarkable legal and factual mistakes.
Shoppers wait in line to pay for their purchases at a Walmart store in Los Angeles, California on … [+] November 24, 2009, a few days before �Black Friday� the day after Thanksgiving which kicks off the holiday shopping season. Retailers are hoping �doorbuster� deals will stimulate sales despite the weak economy. AFP PHOTO / Robyn Beck (Photo credit should read ROBYN BECK/AFP via Getty Images)
"Among the many problems during this trial, the judge allowed it to continue after a juror violated court rules by conducting her own research and sharing it with other jurors.
The judge even said that in his 22 years on the bench he had never seen a juror do "anything like" this, and we agree with the plaintiffs' own lawyer, when he said it was his "ethical obligation" to call for a mistrial because of this juror misconduct.
Put Things In Perspective
Additionally, this verdict is out of step with courts around the country that have rejected plaintiffs' novel "public nuisance" liability theories in opioid lawsuits in Connecticut, Delaware, Illinois, California, Oklahoma, North Dakota, and South Dakota, to name a few.
"Plaintiffs' attorneys sued Walmart in search of deep pockets while ignoring the real causes of the opioid crisis—such as pill mill doctors, illegal drugs, and regulators asleep at the switch—and they wrongly claimed pharmacists must second-guess doctors in a way the law never intended and many federal and state health regulators say interferes with the doctor-patient relationship.
As a pharmacy industry leader in the fight against the opioid crisis, Walmart is proud of our pharmacists, who are dedicated to helping patients in the face of a tangled web of conflicting federal and state opioid guidelines."
Will Today's Verdict Hold Up?
Harry Nelson is the managing partner of Nelson Hardiman, a healthcare law firm based in Los Angeles and the author of The United States of Opioids. He said, "I don't believe this verdict against CVS, Walgreens and Walmart will hold up. I expect a reversal on appeal based on a legally unwarranted extension of the public nuisance theory to a lawfully sold product. Unlike drug makers, pharmacies can't be accused of inappropriate marketing.
"The most that can be said is that they could have done a better job of "red flagging" suspicious prescriptions, but there was no evidence that they turned a blind eye to anything discernibly inappropriate. There was also juror misconduct that most people think was sufficient to warrant a mistrial.
"All of that said, these and other pharmacies are already in a process of grappling with how much "policing" to do of prescriptions.
Previous Federal Education Investments Offer Once-In-A-Lifetime Opportunity To Transform Students' Trajectories
Next Amidst The Great Resignation: Return To Work After A Career Break As A Startup Founder