Payne County commissioners have filed a lawsuit against Walgreens and CVS that accuses the chain pharmacies of “flooding the market” with prescription opiates “beyond any legitimate bounds,” thereby acting “without regard for the lives that would be trammeled in pursuit of profit.”
The civil action charges the pharmacies with creating a public nuisance in violation of Oklahoma state law.
A $465 million public nuisance verdict that a Cleveland County district judge rendered against drugmaker Johnson & Johnson in 2019 was overturned two years later by the Oklahoma Supreme Court. Payne County’s Board of Commissioners filed its lawsuit Oct. 24 in federal district court at Tulsa.
Title 50 of the Oklahoma statutes defines a nuisance as “unlawfully doing an act, or omitting to perform a duty, which act or omission either … annoys, injures or endangers the comfort, repose, health, or safety of others; or … in any way renders other persons insecure in life…”
Lawyers for the state said approximately 6,000 people in Oklahoma died from opioid overdoses between 2000 and 2020. According to the Centers for Disease Control, more than 263,000 people died in the U.S. between 1999 and 2020 from overdoses involving prescription opioids.
In their 55-page petition, the Payne County Board of Commissioners claims CVS and Walgreens “reaped enormous financial rewards by refusing to monitor and restrict the improper dispensing and distribution of opioids” in Payne County.
The opioid epidemic “did not come to Payne County by chance,” the commissioners allege. Payne County “fell victim to chain pharmacies that saturated the area with excessive amounts of dangerous and addictive prescription opioids under the guise of lawful and beneficial activity.”
More than 650,000 opioid prescriptions were dispensed in the U.S. on an average day in 2015, the CDC reported.
Yet Walgreens and CVS “systemically ignored red flags that they were fueling a black market and failed to maintain effective controls against diversion at both the wholesale and retail pharmacy levels,” the commissioners say in the lawsuit.
Pharmacies dispensed ‘absurd volume’ of opioids in Payne Co.
Data collected by ARCOS – the Automated Reports and Consolidated Ordering System that manufacturers and distributors use to report their controlled dangerous substances transactions to the Drug Enforcement Administration – confirms that the defendant pharmacies dispensed an “absurd volume” of opioids in Payne County, the lawsuit contends.
For example, the ARCOS database reflects that between 2006 and 2014, Walgreens distributed 3.22 million dosage units of oxycodone and hydrocodone in Walgreens stores in Payne County in 2006-14, the commissioners state in their lawsuit.
The volume of opioids Walgreens dispensed from just one Walgreens pharmacy in the county “was so high as to raise a red flag that not all of the prescriptions being ordered could be for legitimate medical uses,” the commissioners wrote in their lawsuit. That pharmacy is not identified in the petition.
A “principal risk” of long-term opioid use is that effectiveness wanes and patient tolerance increases, “such that the dose necessary to reach previously obtained analgesic relief can become ‘frighteningly high’.” Many opioid abusers start with “legitimate prescriptions,” the CDC reported in 2016.
Increased opioid use also is associated with “an increased likelihood” of mental health conditions such as anxiety, psychological distress, health care utilization, and a general decrease in health and wellness, the lawsuit petition reports.
The chain pharmacies are “the last link in the opioid supply chain” and “utterly failed in their gatekeeper role” by prescribing “far greater quantities of prescription opioids than they know could be necessary for legitimate medical uses,” the county commissioners allege.
Title 63 of Oklahoma state law prohibits issuing an initial prescription for any more than a seven-day supply of a Schedule II controlled opioid and requires that any opioid prescription for acute pain be limited to the lowest effective dose of an immediate-release formulation.
In addition, the Oklahoma Administrative Code decrees that pharmacists have a corresponding duty, along with the prescriber, to ensure that opioid prescriptions are written “for a legitimate patient for a legitimate medical need in the usual course of practice for the prescriber,” the lawsuit petition states.
Pharmacists’ role is not simply to be ‘vending machine’
“The role of the pharmaceutical distributor is not simply one of shelf stocker, freight forwarder, simple shipper, or vending machine,” the Payne County commissioners assert in their lawsuit.
Federal law imposes “specific duties upon wholesale distributors to monitor, identify, halt, and … report ‘suspicious orders’ of controlled substances,” the commissioners noted.
Walgreens and CVS failed “to report, and take steps to halt, suspicious orders and sales, thereby exacerbating the oversupply of such drugs and fueling an illegal secondary market.”
The defendants “flouted their duties to protect the public … and dismantled and disregarded measures designed to protect the public health and safety,” the lawsuit claims. They also “played an active role in helping the manufacturers promote their false marketing about opioids to health care providers, their own pharmacists, and the public.”
The “explosion” in opioid use and the pharmacies’ profits “has come at the expense of patients and residents and has caused ongoing harm to, and a public nuisance in,” Payne County.
County has incurred high expenses from man-made epidemic
In response to “this man-made public health epidemic,” Payne County has incurred “substantial costs” to fund “a wide range” of public services, including health care, foster care, law enforcement and emergency responder services, criminal justice administration, public assistance, addiction treatment programs, overdose reversal medication and treatment to babies affected by neonatal abstinence syndrome.
Payne County has realized increased expenditures on nuisance abatement, property damage repair and code enforcement, the commissioners said.
Payne County also has lost tax revenue “and incurred both direct and indirect costs as a result of workplace accidents, absenteeism, and decreased productivity from prescription drug abuse caused in whole or in part” by the actions of the defendant pharmacies.
The burdens imposed on the county “are not the normal or typical burdens of government programs and services,” the commissioners declare. Rather, “these are extraordinary costs and losses that are related directly to” the “illegal actions” of Walgreens and CVS that have created “a public nuisance.”
Those expenses “should be borne” by the defendant pharmacies “as creators of the issues plaguing this community, rather than the county’s taxpayers.”
The “continued tortious and unlawful conduct” of CVS and Walgreens continues to occur “and has increased as time progresses,” the Payne County commissioners charge. “The public nuisance remains unabated.”
Representing the county in its lawsuit are attorneys Matthew J. Sill of Oklahoma City, Bradford D. Barron and Zachary T. Barron of Claremore, and James D. Young of Jacksonville, Florida.