Trumbull Cnty. v. Purdue Pharma L.P. (In re Nat'l Prescription Opiate Litig.)

• Docket Number: 22-3750,22-3751,22-3753,22-3841,22-3843,22-3844
• Decision Date: 11 September 2023
• Parties: In Re: National Prescription Opiate Litigation. v. Purdue Pharma L.P., et al., Defendants, Trumbull County, Ohio; Lake County, Ohio; Plaintiffs' Executive Committee, Plaintiffs-Appellees, Walgreens Boots Alliance, Inc., Walgreen Company, Walgreen Eastern Co., Inc. (22- 3750/3841); CVS Pharmacy, Inc., Ohio CVS Stores, LLC, CVS Tennessee Distribution, LLC, CVS Rx Services, Inc., CVS Indiana, LLC (22- 3751/3843); Walmart, Inc. (22-3753/3844), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

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In Re: National Prescription Opiate Litigation.

Trumbull County, Ohio; Lake County, Ohio; Plaintiffs' Executive Committee, Plaintiffs-Appellees,
v.
Purdue Pharma L.P., et al., Defendants,

Walgreens Boots Alliance, Inc., Walgreen Company, Walgreen Eastern Co., Inc. (22- 3750/3841); CVS Pharmacy, Inc., Ohio CVS Stores, LLC, CVS Tennessee Distribution, LLC, CVS Rx Services, Inc., CVS Indiana, LLC (22- 3751/3843); Walmart, Inc. (22-3753/3844), Defendants-Appellants.

Nos. 22-3750, 22-3751, 22-3753, 22-3841, 22-3843, 22-3844

United States Court of Appeals, Sixth Circuit

September 11, 2023

Certification of a Question of Law to the Supreme Court of the State of Ohio United States District Court for the Northern District of Ohio at Cleveland. Nos. 1:17-md-02804; 1:18-op-45032; 1:18-op-45079-Dan A. Polster, District Judge.

ON SUPPLEMENTAL BRIEFS:

Jeffrey B. Wall, Morgan L. Ratner, Zoe A. Jacoby, SULLIVAN &CROMWELL LLP, Washington, D.C., Donald B. Verrilli, Jr., Ginger D. Anders, MUNGER, TOLLES &OLSON LLP, Washington, D.C., Noel J. Francisco, Anthony J. Dick, JONES DAY, Washington, D.C., for Appellants.

M. Michelle Carreras, LANIER LAW FIRM, Houston, Texas, David C. Frederick, Minsuk Han, Ariela M. Migdal, Travis G. Edwards, Kathleen W. Hickey, Daren G. Zhang, KELLOGG, HANSEN, TODD, FIGEL &FREDERICK, P.L.L.C., Washington, D.C., Peter H. Weinberger, SPANGENBERG SHIBLEY &LIBER, Cleveland, Ohio, Hunter J. Shkolnik, Salvatore C. Badala, NAPOLI SHKOLNIK, Hato Rey, Puerto Rico, Frank L. Gallucci, PLEVIN &GALLUCCI CO., L.P.A., Cleveland, Ohio, for Appellees.

Before: BATCHELDER, GRIFFIN, and BLOOMEKATZ, Circuit Judges.

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CERTIFICATION OF A QUESTION OF LAW

RICHARD ALLEN GRIFFIN, CIRCUIT JUDGE.

Defendants appeal from the entry of a $650 million judgment on an Ohio law claim in this multidistrict litigation matter involving the opioid epidemic. Because neither side addressed the issue of certification in their briefs, we ordered supplemental briefing. Following review, we sua sponte certify a question of law to the Supreme Court of the State of Ohio.

I.

A.

This is an appeal from one of the many cases pending in the United States District Court for the Northern District of Ohio as part of the multidistrict National Prescription Opiate Litigation. Various cities and counties from across the nation, Indian Tribes, and other entities "allege that opioid manufacturers, opioid distributors, and opioid-selling pharmacies and retailers acted in concert to mislead medical professionals into prescribing, and millions of Americans into taking and often becoming addicted to, opiates." In re Nat'l Prescription Opiate Litig., 976 F.3d 664, 667 (6th Cir. 2020). The cases assert "numerous causes of action, including claims based upon the federal Racketeer Influenced and Corrupt Organizations Act, . . . its state analogues, state statutory public nuisance law, and several other state common law claims." Id.

Plaintiffs here are two northeast-Ohio counties, Trumbull and Lake. They allege that national pharmaceutical chains, including defendants Walgreens, CVS, and Walmart, "created, perpetuated, and maintained" the opioid epidemic by filling prescriptions for opioids without controls in place to stop the distribution of those that were illicitly prescribed. That conduct,

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plaintiffs assert, caused an absolute public nuisance remediable by abatement under Ohio common law.

The district court joined the Counties' claims under Federal Rule of Civil Procedure 42 and ordered a bellwether trial. Following a lengthy trial, a jury concluded that the "oversupply of legal prescription opioids, and diversion of those opioids into the illicit market outside of appropriate medical channels" was a public nuisance in Trumbull and Lake Counties, and that defendants "engaged in intentional and/or illegal conduct which was a substantial factor in producing the public nuisance." The district court then held a bench trial regarding remedies, which ultimately resulted in a $650 million abatement order and an injunction requiring defendants to "undertake certain actions to ensure they are complying fully with the Controlled Substances Act and avoiding further improper dispensing conduct." Defendants separately appealed, which we subsequently consolidated.

B.

Defendants' appeal raises numerous issues with the district court's orders, including whether (1) Ohio law permits such a public-nuisance claim, (2) the Counties proved their claims at trial, (3) juror misconduct necessitated a mistrial, and (4) the district court's abatement order is consistent with the scope of relief and apportionment. We focus on just the first today, for resolution of that issue in defendants' favor would nullify all other purported errors.

1.

A common law public nuisance claim under Ohio law is one asserting "an unreasonable interference with a right common to the general public." Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002) (citation omitted). Plaintiffs' claims allege the creation of an "absolute public nuisance," which requires "either intentional conduct or an abnormally dangerous condition that cannot be maintained without injury to property, no matter what care is taken." State ex rel. R.T.G., Inc. v. State, 780 N.E.2d 998, 1010 (Ohio 2002). Defendants assert that plaintiffs' claims sound in product liability because they accuse them of "marketing, distributing, dispensing, and selling opioids in ways that unreasonably interfere with the public

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health, welfare, and safety in Plaintiff's community." And as such, they argue that the Ohio Product Liability Act's abrogation of certain common law torts bars plaintiffs' claims.

That act sets forth a statutory mechanism for advancing product-liability claims. Ohio Rev. Code § 2307.71 et seq. As relevant here, the OPLA provides:

(A) Any recovery of compensatory damages based on a product liability claim is subject to sections 2307.71 to 2307.79 of the Revised Code

(B) Any recovery of punitive or exemplary damages in connection with a product liability claim is subject to sections 2307.71 to 2307.80 of the Revised Code.

(C) Any recovery of compensatory damages for economic loss based on a claim that is asserted in a civil action, other than a product liability claim, is not subject to sections 2307.71 to 2307.79 of the Revised Code, but may occur under the common law of this state or other applicable sections of the Revised Code.

§ 2307.72(A)-(C). It defines a "product liability claim" as follows:

"Product liability claim" means a claim or cause of action that is asserted in a civil action pursuant to sections 2307.71 to 2307.80 of the Revised Code and that seeks to recover compensatory damages from a manufacturer or supplier for death, physical injury to person, emotional distress, or physical damage to property other than the product in question, that allegedly arose from any of the following:

(a) The design, formulation, production, construction, creation, assembly, rebuilding, testing, or marketing of that product;

(b) Any warning or instruction, or lack of warning or instruction, associated with that product;

(c) Any failure of that product to conform to any relevant representation or warranty.

"Product liability claim" also includes any public nuisance claim or cause of action at common law in which it is alleged that the design, manufacture, supply, marketing, distribution, promotion, advertising, labeling, or sale of a product unreasonably interferes with a right common to the general public.

§ 2307.71(A)(13). Finally, the Act expressly states that it is "intended to abrogate all common law product liability claims or causes of action." § 2307.71(B).

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2.

a.

The scope of the OPLA's abrogation was first before the district court in a separate case in this multidistrict litigation. Multiple pharmacy defendants, including defendants here, moved to dismiss a materially identical absolute public nuisance claim asserted by Summit County, Ohio, on the same OPLA-abrogation grounds. A magistrate judge recommended that the district court grant the motion, concluding that the OPLA's plain text foreclosed any type of common law public nuisance actions relating to product-liability claims. In re Nat'l Prescription Opiate Litig., 2018 WL 4895856, at *29-31 (N.D. Ohio Oct. 5, 2018). In his view, § 2307.71(B)'s statement that the OPLA is "intended to abrogate all common law product liability claims or causes of action" was outcome determinative-that the claim sought an equitable, as opposed to a compensatory, remedy, mattered not. Id.

The district court saw it differently. 2018 WL 6628898, at *12-15 (N.D. Ohio Dec. 19, 2018). It found § 2307.71(A)(13)'s definition of "product liability claim" to be ambiguous, and thus turned to the legislative history of two amendments to the OPLA, one effective in 2005 and the other in 2007. The first, added in 2005, is the "intended to abrogate" provision, which was "intended to supersede the holding of the Ohio Supreme Court in Carrel v. Allied Products Corp. (1997), 78 Ohio St.3d 284, that the common law product liability cause of action of negligent design survives the enactment of the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised Code, and to abrogate all common law product liability causes of action." 2004 Ohio Laws File 144 (Am. Sub. S.B. 80). Second, the last portion of the definition of a "product liability claim" concerning "any public nuisance claim" was added in 2007. 2006 Ohio Laws File 198 (Am. Sub. S.B. 117). That language was meant to "declare" the Ohio General Assembly's "intent that the amendments . . . are not intended to be substantive but are intended to clarify the General Assembly's original intent in enacting the Ohio Product Liability Act, sections 2307.71 to 2307.80 of the Revised...