Damages Set In The Belwether Opioid Trial

For more than a year I have been covering what I have felt are serious problems with Judge Dan Aaron Polster’s handling of mass tort litigation pitting two Ohio counties (Lake County and Trumbull County) against WalmartWMT
WMT
, WalgreensWBA
WBA
, and CVS. (link here). Jury findings against the defendants seem to have been interpreted in peculiar ways by Judge Polster, given routine understandings of the tort concept of joint and several liability. Now today (August 17) the judge ruled that three pharmacy chains must pay more than $650 million to fund a plan addressing fallout from opioid use in the counties.

The money will provide 20% of the setup costs for an abatement program for the counties.

His ruling was made in the first trial pharmacies had faced in the sprawling multidisrict litigation. A jury in November determined that the chains were liable, and Judge Polster heard arguments in May over how much in damages the companies should pay. I discussed that hearing in the column referenced above.

Lake County, near Cleveland, and Trumbull County, near Youngstown, proposed that the abatement program be set up for five years. They have said they may seek more money from the pharmacies after that point.

The pharmacies, for their part, will now certainly appeal Judge Polster’s ruling. They presented experts in the damages portion of the trial who said they were a tiny cog in the distribution chain, merely filling legal prescriptions as was their right and, indeed, perhaps their obligation. The Sixth Circuit Court of Appeals has already rendered some decisions that might signal their displeasure with Judge Polster’s reasoning, so it will be very interesting to follow the next step in these proceedings.