More Controversy In The Bellwether Opioid Trial

In late April, I discussed what I felt were serious problems with Judge Dan Aaron Polster’s handling of the mass tort trial pitting two Ohio counties against Walmart
WMT
, Walgreens
WBA
, and CVS. (link here). Since then, the jury findings against the three defendants seems to have been interpreted in peculiar ways by Judge Polster, given routine understandings of the tort concept of joint and several liability.

Last week a planned two-week bench trial began in Judge Polster’s chambers, the purpose of which was to determine the amount that each of the three defendants would have to pay the counties, over a five year period. [Many other defendants have settled, but the three giant pharmacy operators strenuously deny that they wrongly caused any damage.] Daniel Fisher over at Legal Newsline recently described the bench trial. In brief, based on Fisher’s description, here are the relevant issues as I see them:

1. The jury found that the three defendants had contributed to a “public nuisance” of opioids. A public nuisance consists of harming the public (e.g., by blocking a public road, or polluting a public lake). The jury form found that the public nuisance at had is “the oversupply of legal prescription opioids, and diversion of those opioids.” [emphasis added] The finding is problematic and vulnerable to appeal, since essentially all the evidence (even that produced by plaintiffs’ experts) indicates that the social ills of opioid addiction are largely caused by non-prescription use of illegal fentanyl and heroin (often smuggled in through our porous southern border).
2. Judge Polster, to whom the multidistrict litigation was assigned, himself has serious issues in my opinion. A judge is supposed to be faithful to the law, not favorable to the plaintiffs’ or defendants’ proposed remedies. Yet Judge Polster began his duties in 2018 by declaring that his goal in this multidistrict litigation was “to do something meaningful to abate this crisis and do it in 2018,” with “something meaningful” meaning getting “some amount of money to the government agencies for treatment.” This conflation of judge and policy-maker is, with respect, difficult to reconcile with the judicial function.
3. To make matters worse, Judge Polster has recently recharacterized the public nuisance. He defined it as “the addiction and dependence of a large number of people in in Lake and Trumbull counties resulting from the overdispensing and diversion of prescription opioids.” [emphasis added]. This is contrary to the jury holding’s terminology above — the oversupply was caused by illegal importation, while the alleged “overdispensing” seems to target the defendant pharmacies. Judge Polster’s redefinition of public nuisance also begs the question (discussed in my April column) of when and how pharmacies should refuse to dispense legally written prescriptions.
4. Judge Polster also seems to ride roughshod over the classic tort doctrines of joint and several liability. In brief, if harm is caused indivisibly (two robbers rob a bank together; two drunk drivers simultaneously hit and destroy an automobile) they are jointly liable for the damage caused. But where apportionment is possible (Johnny steals $10 from the bank today, and Janey steals $20 from the same bank tomorrow) each is only liable for the damage they have wrongfully caused. Judge Polster seemed to think that the alleged nuisance was indivisible: he stated back in 2018 that plaintiffs did not have to prove any individual quantified harm, and even concluded that no quantification of harm attributable to the defendants was even possible. [See footnote below]. But this of course begs the question. As the defendants have clearly shown, there is detailed evidence of divisibility available, in the form of prescription data held by Ohio regulators as well as the treatment records in the counties. In this “abatement” (damages) phase, Judge Polster could examine the real people who received rehab treatment in the two counties to see how many received prescription opioids from the three companies. Judge Polster pushed back against this suggestion, asking if there was any case law suggesting abatement should be apportioned among the many actors responsible for a nuisance. Surely there is such case law in the form of the common law of joint and several liability.

Yet again, defendants seem to be hitting a brick wall in their arguments before a federal judge committed to adequately fund county (and by implication national) rehab programs from company coffers.

Assuming there were 5,000 people needing treatment in the two counties, the judge said, “there was absolutely no evidence in the trial as to who any of the 5,000 were, let alone how they came to be addicted, over what period of time, over what — what prescriptions they got.” “There was no evidence, and there will be no evidence,”