Cnty. of Lake v. Purdue Pharma, L.P. (In re Nat'l Prescription Opiate Litig.)
| Docket Number | MDL 2804,Case No. 1:17-md-2804, Case No. 18-op-45032 , Case No. 18-op-45079 |
| Decision Date | 07 March 2022 |
| Citation | 589 F.Supp.3d 790 |
| Parties | IN RE: NATIONAL PRESCRIPTION OPIATE LITIGATION This Document Relates to: Track Three Cases: County of Lake, Ohio v. Purdue Pharma, L.P., et al. County of Trumbull, Ohio v. Purdue Pharma, L.P. |
| Court | U.S. District Court — Northern District of Ohio |
Before the Court are Defendants’ Rule 50(b) Motions for Judgment as a Matter of Law (Doc. ##: 4202, 4203, 4206, and 4207).1 Plaintiffs filed an omnibus response (Doc. #: 4241), and Defendants filed replies (Doc. ##: 4256, 4257, 4259, and 4260). For the reasons stated below, the Motions are DENIED.
* * * After an eight-week trial, a jury found in favor of Plaintiffs, Ohio's Lake and Trumbull Counties ("the Counties"), in the liability phase of the trial of their absolute public nuisance claims. Plaintiffs claimed the unlawful and/or intentional dispensing conduct of Pharmacy Defendants – CVS, Walgreens, and Walmart – "substantially contributed to an oversupply of legal prescription opioids and to diversion of those opioids into the illicit market outside appropriate medical channels, thereby endangering public health or safety and creating a public nuisance." 11/15/21 Trial Tr. at 7070-71 (Doc. #: 4153) (charge to the jury). The jury found in favor of Plaintiffs on liability, leaving the Court to determine the remedy of abatement in a phase two bench trial. As discussed below, Defendants raise a number of challenges to the jury's verdict.
Under Rule 50(a), a court should grant a motion for judgment as a matter of law when "a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 149, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting Fed. R. Civ. P. 50(a) ). "A motion for judgment as a matter of law may be made at any time before the case is submitted to the jury." Fed. R. Civ. P. 50(a)(2). If the court does not grant this motion, the moving party may renew the denied motion after trial on the same grounds asserted in the earlier motion. Fed. R. Civ. P. 50(b). "A Rule 50(b) motion is only a renewal of the preverdict motion, and it can be granted only on grounds advanced in the preverdict motion." Hanover Am. Ins. Co. v. Tattooed Millionaire Ent., LLC , 974 F.3d 767, 780 (6th Cir. 2020).
The standard for granting judgment as a matter of law "mirrors" the standard for summary judgment, "such that ‘the inquiry under each is the same.’ " Reeves , 530 U.S. at 150, 120 S.Ct. 2097 (quoting Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250–51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). Id. (citing Lytle v. Household Mfg., Inc. , 494 U.S. 545, 554–55, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990) ). "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge." Id. (quoting Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505 ). "A motion for judgment as a matter of law should be granted ‘only if reasonable minds could not come to a conclusion other than one favoring the movant.’ " ECIMOS, LLC v. Carrier Corp. , 971 F.3d 616, 627 (6th Cir. 2020) (quoting Mosby-Meachem v. Memphis Light, Gas & Water Div. , 883 F.3d 595, 602 (6th Cir. 2018) ).
In their joint motion, Defendants assert the trial evidence is insufficient to support liability on Plaintiffs’ absolute liability claims, arguing no reasonable juror could have found that: (1) Defendants engaged in unlawful dispensing conduct; (2) Defendants engaged in intentional, culpable conduct; or (3) Defendants’ conduct proximately caused a public nuisance in the Counties. In their separate motions, Defendants also make arguments regarding the sufficiency of the evidence as to each Defendant. Additionally, Defendants assert the public nuisance claims fail as a matter of law, regardless of the evidence presented at trial.
The Court has reviewed all of Defendants’ arguments and finds each of them unpersuasive. For the reasons that follow, Defendants are not entitled to judgment as a matter of law on any of their legal theories.
Defendants assert the trial evidence was insufficient to support the verdicts against them. Specifically, Defendants argue that Plaintiffs failed to establish either that: (1) Defendants engaged in unlawful or intentional conduct, or (2) Defendants’ conduct proximately caused a public nuisance in the Counties.
To find a Defendant liable for creating a public nuisance, the jury was required to find the Defendant engaged in intentional and/or unlawful conduct "that caused a significant and ongoing interference with a public right to health or safety." Further, Plaintiffs had to show the Defendant's conduct was "a substantial factor in creating the public nuisance." 11/15/21 Trial Tr. at 7077 (Doc. #: 4153).
Defendants first assert the trial evidence was insufficient to show they knowingly engaged in unlawful dispensing conduct. Joint Motion at 3-12 (Doc. #: 4202). At the outset, the Court rejects Defendants’ argument that Plaintiffs were required to show Defendants’ pharmacists filled specific illegitimate prescriptions in the Counties. This argument ignores the aggregate nature of Plaintiffs’ theory of proof at trial. Plaintiffs chose to demonstrate unlawful conduct by showing Defendants knowingly failed to take adequate measures to guard against diversion of prescription opioids. In particular, Plaintiffs presented evidence of Defendants’ dispensing of large quantities of highly addictive drugs in the Counties, while repeatedly failing to take legally-required, effective measures to identify and resolve "red flags" prior to dispensing, and failing to document any due diligence with respect to those red flags.2
Under the Court's instructions for unlawful conduct, the jury was required to find each Defendant's dispensing of controlled substances did not substantially comply with the Federal and Ohio Controlled Substances Acts and their accompanying regulations. 11/15/21 Trial Tr. at 7074-75 (Doc. #: 4153).3 As the Court instructed, under these laws and regulations:
(1) "entities that are authorized to dispense controlled substances are required to provide effective controls and procedures to guard against theft and diversion;" and (2) a pharmacy has "a corresponding responsibility for proper dispensing of controlled substances for a legitimate medical purpose." Id. at 7075. Regarding violation of the "corresponding responsibility," the jury instruction stated:
A violation of the corresponding responsibility occurs when a person knowingly fills or allows to be filled an illegitimate prescription. In this context, knowingly includes when a person acts with deliberate ignorance or willful blindness to information in their possession.
11/15/21 Trial Tr. at 7075-76 (Doc. #: 4153).
Further, regarding evidence of knowledge or intent, the Court informed the jury that certain settlement agreements between Defendants and the DEA could be considered for a "limited purpose" – that is, the jury could consider these settlements only to the extent the jury believed they tended to show the Defendant's intent, or what notice or knowledge the Defendant received as a result of the settlements. Id. 7073. Regarding the settlements, the Court instructed: "You may not infer liability or draw any conclusions about a defendant's potential liability in this case based on the fact that it entered into one of those settlements." Id.
As set forth below, the evidence introduced at trial was sufficient for a jury to reasonably conclude Plaintiffs demonstrated that each Defendant knowingly engaged in unlawful dispensing conduct.4
CVS contends the evidence is insufficient for a jury to find CVS acted unlawfully. Specifically, CVS maintains evidence concerning DEA and Ohio Board of Pharmacy inspections "demonstrated that the CVS pharmacies in Lake and Trumbull Counties were normal pharmacies that were dispensing prescription opioids in a lawful manner to serve their patients’ needs." CVS Motion at 4-6 (Doc. #: 4207). CVS also insists there is no evidence to show CVS acted unlawfully at the corporate level or at the store-level in the Counties. Id. at 6-11. CVS further argues that, because it fully complied with its legal and regulatory obligations, it is entitled to safe harbor immunity from nuisance liability. Id. at 4-6.
Plaintiffs had the burden to prove that CVS failed to take adequate measures to avoid diversion of prescription opioids. Evidence introduced at trial was sufficient for a reasonable jury to conclude that Plaintiffs carried this burden.
At trial, Plaintiffs presented evidence demonstrating that CVS, both at the corporate level and in the field, was aware of its corresponding responsibility and the importance of resolving red flags before dispensing opioids. Kenneth Cook, CVS Pharmacist and District Leader, stated: "Corresponding responsibility ... to me it starts with a definition is [sic] when a patient presents a prescription for a controlled substance, you know, resolving any red flags that are discovered prior to that medication ultimately reaching the hands of the public."5 And Michelle Travassos, CVS Manager of Pharmacy Professional Services, agreed that "every red flag that a pharmacist identifies with a prescription must be resolved before the pharmacist can fill the prescription."6
The jury also heard evidence that, despite its...
To continue reading
Request your trial
-
Trumbull Cnty. v. Purdue Pharma L.P. (In re Nat'l Prescription Opiate Litig.)
...court once more sided with plaintiffs, concluding the absolute public nuisance claims "clearly fall outside the scope of the OPLA." 589 F.Supp.3d 790, 812 (N.D. Ohio 2022). It again reasoned that plaintiffs' requests for abatement sought "prospective relief for economic loss that is pecunia......