The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)

An Ohio Supreme Court decision could bring about challenges to those hoping to keep pharmaceutical companies accountable for the opioid crisis, and others who hope to file claims of a “public nuisance.”

The Ohio Supreme Court ruled that lawsuits in Ohio can’t claim pharmaceutical chains “caused a public nuisance” by selling opioids, in a recently released decision which could have impacts on a $650 million judgment for two Ohio counties.

“It really only impacts litigation in Ohio, but it does reach a broad conclusion about the ability of plaintiffs to assert public nuisance claims,” said Sharona Hoffman, professor of law and bioethics at Case Western Reserve University.

The Ohio Supreme Court was asked to determine whether “common-law public nuisance claims arising from the sale of a product” are precluded by the Ohio Product Liability Act, a part of Ohio law used for claims such as manufacturing defects, design defects, and failures to give warnings about risks or hazards in products.

Plaintiffs in the case argued that the dispensing of opioids lies outside the purview of the OPLA, which has more to do with the design, manufacture, marketing, promotion, and sale of a product.

Justice Joe Deters was joined by Chief Justice Sharon Kennedy, Justice Patrick DeWine, and Justice Jennifer Brunner in ruling that those types of public nuisance claims are indeed eliminated by the OPLA.

“This is straightforward: product-liability claims brought at common law – such as the counties’ claims – have been abrogated,” Deters wrote.

The counties Deters references in the majority opinion are Lake and Trumbull counties, where the state supreme court’s ruling may cause the U.S. Sixth Circuit Court to deny a judgment in favor of the counties. In 2022, $650.9 million was awarded to them for a “public nuisance” perpetrated by national companies including CVS Health, Walmart, and retail pharmacy Walgreens Boot Alliance in exacerbating the opioid crisis in those counties.

After a federal jury made their decision finding the chains responsible, U.S. District Judge Dan Polster ordered the $650 million judgment, saying the companies’ actions brought on addiction, overdose and a strain on community resources related to the opioid crisis.

The Sixth Circuit asked the Ohio Supreme Court to interpret state law regarding public nuisance claims and the Ohio Product Liability Act, and with the state’s highest court’s interpretation of state law leaning in favor of the pharmaceutical chains, those millions may be up in smoke.

“Now that the Ohio Supreme Court has done that, the Sixth Circuit will apply the answer to the case before it and probably deny the counties’ recovery,” Hoffman told the Ohio Capital Journal.

Justices Melody Stewart and Michael Donnelly agreed with the majority decision in part, but Stewart argued that the counties were not asking for compensatory damages as part of their product liability claim, rather “equitable relief,” which the justice said meant the claim was not barred by the OPLA.

“The equitable relief awarded by the federal court was designed, and has been used, to abate the nuisance caused by the flood of opioids into the market, not to compensate the counties for the loss of life or economic consequences of opioid addiction,” Stewart wrote in her opinion.

Deters used the majority opinion to recognize that the opioid crisis “has touched the lives of people in every corner of Ohio,” and the damage from the crisis “undoubtedly has far-reaching consequences for their communities and for the state as a whole.”

“Creating a solution to this crisis out of whole cloth is, however, beyond this court’s authority,” Deters wrote. “We must yield to the branch of government with the constitutional authority to weigh policy considerations and craft an appropriate remedy.”

The General Assembly has spoken “plainly and unambiguously” that public nuisance claims are not that remedy, he added.

Co-counsel for the plaintiff in the case said the ruling “will have a devastating impact on communities and their ability to police corporate misconduct.”

“We have used public nuisance claims across the country to obtain nearly $60 billion in opioid settlements, including nearly $1 billion in Ohio alone, and the Ohio Supreme Court’s ruling undermines the very legal basis that drove this result,” said Peter H. Weinberger, co-liaison counsel in the case and trial counsel to Lake and Trumbull counties, in a statement.

Weinberger said the fight will continue, and the parties in the case “remain steadfast in our commitment to holding all responsible parties to account as this litigation continues nationwide.”

“This ruling is not the end of these cases … and our team will continue to fight for these counties through other legal avenues,” Weinberger said.