## Facts

- Two Ohio counties sued CVS, Walgreens, and Walmart for “absolute public nuisance” under Ohio law based on the pharmacies’ dispensing of prescription opioids.
- The case proceeded as a bellwether trial within a federal multidistrict litigation addressing opioid-related claims.
- After an eight-week jury trial, the jury found that an oversupply of prescription opioids and diversion into illicit channels constituted a public nuisance in the counties.
- The jury found the pharmacy defendants’ intentional and/or illegal dispensing conduct was a substantial factor in causing the nuisance.
- Plaintiffs presented evidence that the pharmacies dispensed high volumes of opioids despite repeated “red flags” indicating potential diversion (e.g., suspicious prescribing and dangerous combinations).
- Plaintiffs alleged the pharmacies failed to maintain effective controls against diversion as required by federal controlled-substances rules and corresponding duties.
- Proceedings were bifurcated: the jury decided liability, and the court reserved the abatement remedy for a later bench phase.

## Issues

1. Whether the evidence permitted a reasonable jury to find unlawful and/or intentional dispensing conduct supporting Ohio public-nuisance liability.
2. Whether the evidence permitted a reasonable jury to find defendants’ dispensing practices were a substantial factor in causing the alleged public nuisance (proximate cause).
3. Whether the alleged opioid-related harms constituted interference with a “right common to the general public” under Ohio nuisance law.
4. Whether the Ohio Product Liability Act barred or displaced the public-nuisance claim as, in substance, a product-liability action.
5. Whether alleged changes in defendants’ practices defeated liability for a continuing public nuisance.

## Decision

- The court denied the pharmacy defendants’ renewed Rule 50(b) motions for judgment as a matter of law.
- Viewing the evidence in the light most favorable to the verdict, the court held a reasonable jury could find unlawful and/or intentional dispensing conduct, including ignoring red flags and lacking effective anti-diversion controls.
- The court held the record supported a reasonable finding that defendants’ conduct was a substantial factor in creating and perpetuating the public nuisance in the counties.
- The court held the opioid epidemic harms shown at trial could qualify as unreasonable interference with public rights (public health and safety), not merely aggregated private injuries.
- The court rejected Product Liability Act preclusion because the claim was grounded in dispensing conduct and anti-diversion failures rather than a defective-product theory.
- The court held that asserted improvements in practices did not negate liability for an existing nuisance alleged to persist, and the case could proceed to the abatement phase.

## Legal Principles

- Rule 50(b) relief is appropriate only when, after viewing the trial evidence favorably to the verdict winner, no reasonable jury could find for that party; the court may not reweigh evidence or assess credibility.
- Under Ohio public-nuisance law, liability requires an unreasonable interference with a right common to the general public, and causation may be shown by proof that defendants’ conduct was a substantial factor in producing the nuisance.
- Evidence that pharmacies failed to maintain effective controls against diversion and dispensed despite clear diversion indicators can support a finding of unlawful and/or intentional conduct.
- Ohio’s Product Liability Act does not necessarily displace claims focused on alleged misconduct in dispensing and diversion control rather than product design, manufacture, or warnings.
- Changes in challenged practices do not automatically defeat nuisance liability where the trier of fact could find the nuisance and its public costs continue and were substantially caused by defendants’ conduct.

## Conclusion

The court sustained the jury’s Ohio public-nuisance liability verdict against major pharmacy chains by denying Rule 50(b) motions, holding that the trial record could support findings of unlawful/intentional dispensing, substantial-factor causation, interference with public rights, and no displacement by Ohio product-liability law, with abatement to be determined in a later bench phase.


In re Nat’l Prescription Opiate Litig., 589 F. Supp. 3d 790 (N.D. Ohio 2022)