U.S. District Judge Dan Polster, appointed by Bill Clinton and tasked with overseeing the federal opioid litigation in Cleveland, Ohio, has denied efforts by Rite Aid, Walmart, CVS, and other pharmacies to dismiss allegations that their opioid monitoring systems were unreliable and that their failure to prevents opioids from being obtained illegally created a public nuisance.  This means, the pharmacies will be subject to defending their potential role in contributing to the nationwide opioid epidemic.In his order, Polster found the plaintiff counties had shown sufficient evidence to support the allegations due largely to the fact that the pharmacies dispensed medication to the public, which Polster said “violated the Federal Controlled Substances Act and also Ohio controlled substance laws.”  Evidence cited to support the plaintiffs' claims included that “CVS Health Corp.’s system for suspicious orders was makeshift, haphazard and ineffectual.”  Polster also stated “between 2006 and 2009, CVS had no formal written procedures to identify suspicious opioid orders and instead relied on employees’ gut feelings to identify orders that were too large” rather than properly monitoring shipments.

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Polster found “Walmart Inc. had no written procedures for monitoring suspicious orders until 2011” and he stated, “while Rite Aid Corp. had a list of suspicious prescribers, the pharmacy chain never took the proper steps to determine whether orders from those prescribers were suspicious.”The original complaint asserted “CVS worked with Purdue Pharma, the maker of OxyContin, to offer promotional seminars on pain management to its pharmacists so they could reassure patients and doctors about the safety of the drug.; In partnership with Endo Pharmaceuticals, CVS sent letters to patients encouraging them to maintain prescriptions of Opana, a potent opioid eventually removed from the market altogether.; From 2006 through 2014, the Rite Aid in Painesville, Ohio, a town with a population of 19,524, sold over 4.2 million doses of oxycodone and hydrocodone.  It offered bonuses to stores with the highest productivity.; Walgreens’ contract with the drug distributor AmerisourceBergen specified that Walgreens be allowed to police its own orders, without oversight from the distributor.  Similar conditions were struck by CVS with its distributor, Cardinal Health.”Since the filing, the pharmacies had contended they simply acted as the “middlemen” between physicians and patients and argued they should be relieved of blame because they were simply fulfilling orders made by medical personnel.  They argued the plaintiffs brought “common law absolute public nuisance claims, alleging...violations of anti-diversion laws gave rise to a public nuisance” when Ohio law only allows for statutory public nuisance claims.“While pharmacists are highly trained and licensed professionals...they do not write prescriptions,” attorneys for the pharmacies wrote in their attempt to dismiss the case. They noted further “the complaint against the pharmacies fails to identify even one prescription that was supposedly filled improperly by any pharmacist working for any of the Summit County Pharmacy Chains.  Not one…A prescription for a controlled substance is an order for a medication that may be issued only by a physician or other authorized healthcare practitioner.  While pharmacists are highly trained and licensed professionals, they did not attend medical school and are not trained as physicians.”Walgreens spokesperson Phil Caruso said, “This complaint is required to respond to the unsubstantiated allegations by Plaintiffs that pharmacists should not have filled prescriptions, written by doctors, for FDA-approved opioid medications.”  He added, Walgreens believes “that the overwhelming majority of prescriptions dispensed were properly prescribed by doctors to meet the legitimate needs of their patients.”CVS responded, “Opioids are made and marketed by drug manufacturers, not pharmacists.  Pharmacists dispense opioid prescriptions written by a licensed physician for a legitimate medical need.”Unable to dismiss the claims, the pharmacies will go to trial in October 2020 against Cuyahoga and Summit Counties in Ohio.

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Ohio Judge Denies Pharmacies Attempt to Escape Public Nuisance In Opioid MDLPharmacies Place Blame on Opioid Prescribing PhysiciansJudge Dan Polster Opinion: Case No. 1:17-MD-2804Filing Contends Pill-pushing Pharmacies Should Not be Forgotten