August 14, 2020

Ohio Federal District Court Judge Denies Defendants' Motion to Dismiss in Opioid Bellwether

On August 6, United States District Judge Dan Aaron Polster, Northern District of Ohio, denied a motion to dismiss the public nuisance claims of two Ohio counties in the pending opioid bellwether trial. The track three line of cases in the multidistrict litigation, which specifically address claims against pharmacy defendants, will proceed in May of 2021.

Pharmacy defendants filed a motion to dismiss the two public nuisance claims, arguing both that state laws and regulations precluded the claims, and that pharmacist employees have a duty to prevent diversion under the Controlled Substances Act (CSA), rather than the pharmacy defendants themselves. On the first point, Judge Polster determined that the common law claims were not expressly abrogated by statute, the comprehensive regulatory scheme governing controlled substances in Ohio did not abolish the common law cause of action, and that there was no irreconcilable conflict between the common law claims and the applicable statutory claim. On the second point, Judge Polster concluded that the CSA "explicitly requires pharmacies to collect prescription data and use it to monitor for questionable prescriptions that might lead to diversion." Judge Polster reasoned that an interpretation imposing compliance obligations only on licensed pharmacists and not on a pharmacy itself could not stand.