After inking $2.4 billion in settlements with prescription drug manufacturers, distributors and retailers, the state is set for a courtroom showdown with Walgreens over the pharmacy giant’s role in the opioid epidemic.
A long-awaited trial in the case kicked off Monday morning in Pasco County, which is among the areas of Florida that suffered most in the epidemic that former Gov. Rick Scott declared in 2017 as a public health emergency.
The lawsuit, filed by the state attorney general’s office in 2018, accused five of the nation’s largest opioid manufacturers and four distributors of causing the crisis responsible for killing 15 Floridians each day. The state later named Walgreens Co. and CVS Pharmacy Inc. and CVS Health Corp. as defendants in the case.
In advance of the jury trial, Florida reached settlements with all of the defendants except Walgreens. Attorney General Ashley Moody’s office announced two weeks ago that the state had struck deals totaling more than $870 million with CVS and two drug manufacturers, leaving Walgreens as the lone holdout in the case.
Pasco County Circuit Judge Kimberly Sharpe Byrd on April 4 oversaw jury selection for the trial, which will take place in New Port Richey.
In the leadup to the trial, lawyers for Moody’s office and Walgreens have bickered over expert witnesses, document production and the kind of information jurors should be allowed to scrutinize.
For example, Walgreens’ lawyers argued that the state should not be allowed to compare prescription opioid drugs to tobacco products.
Florida reached a multibillion-dollar settlement with the tobacco industry in the 1990s because of the health-related impacts of smoking.
“Obviously, the tobacco industry is a lightning rod for people’s emotions everywhere, but certainly in Florida. People have very, very strong feelings about the tobacco industry and the way it conducted itself,” Walgreens attorney Kaspar Stoffelmayr told Byrd during an April 1 video hearing. “If you want to present the jury with evidence about why opioids are a serious problem in the community, you’ve got to present them with evidence about the problems caused by opioids.”
It’s “not proper to try and gussy that up with evidence” about harms related to tobacco, environmental pollution, “and anything else,” he said.
“The evidence has got to be about what the case is about,” Stoffelmayr said.
But Daniel Paul Johnson, an attorney who represents the state, argued that “tobacco comparisons are highly relevant” to the case.
“It can hardly be disputed that both opioids and tobacco products are highly, highly addictive. Both increase your chance of disease and death. Both have been deceptively marketed,” he said, asking Byrd to reserve ruling on any tobacco objections until the trial.
Byrd granted the state’s request, with a caution.
“I do think there could be some issues in making tobacco comparisons that might outweigh whatever value you’re trying to use it for. I do think there’s other comparisons you could probably make,” she said.
The state and Walgreens also squabbled over how much information jurors should receive about the retail chain’s finances and earnings.
“It is irrelevant for many reasons, including the fact that Walgreens’ overall finances go far beyond the state of Florida,” Walgreens attorney Jordan Golds said.
Even within Florida, “large parts of Walgreens’ business has nothing to do with opioids at all,” he argued.
Courts have been “wary” to admit evidence about defendants’ wealth “because of the well-accepted understanding that jurors have a tendency to disfavor the rich,” Golds said.
“So to be fair, basically every juror is already going to know that Walgreens is a large national chain, but that doesn’t erase this risk that would be presented by arguments or evidence about Walgreens’ financials that have nothing to do with Florida or opioids,” he added.
But Minsuk Han, who represents the state, told Byrd that the state should be allowed to discuss Walgreens’ overall business, including its number of stores and employees.
“The magnitude and the nationwide scope of Walgreens’ operation are relevant, not only to their knowledge of the opioid epidemic, but also to their possession of extensive distribution and dispensing data important to preventing diversion of opioids,” Han argued.
Walgreens’ profitability is also relevant, he said, pointing to the chain’s “profit-driven policies and its refusal to properly staff its pharmacies.”
“Walgreens’ pharmacists could not take sufficient time to review prescriptions before dispensing them because the company wanted them to fill as many prescriptions, both opioids and non-opioid prescriptions, as possible, using as low labor costs as possible,” Han said.
Walgreens’ managers were compensated based on how profitable the stores they oversaw were, Han argued.
Again, Byrd said she would defer ruling on the issue until it comes up as contemporaneous objections during the trial.
The trial comes after Florida has signed six settlement agreements totaling about $2.4 billion, according to Moody’s office. The settlements are with AmerisourceBergen Corp.; Cardinal Health, Inc.; McKesson Corp.; Johnson & Johnson, Inc.; Endo Pharmaceuticals Inc.; CVS Pharmacy, Inc.; Teva Pharmaceutical Industries, Ltd.; and Allergan-affiliated companies.
Some settlements resulted from multi-state litigation, while others came as a result of the lawsuit filed in Pasco County.
Moody’s office on Wednesday filed a lawsuit against five Florida public-hospital systems and the Miami-Dade County School Board, arguing they are jeopardizing the settlements.
Moody’s office filed the lawsuit in Leon County circuit court against the Sarasota County Public Hospital District, Lee Memorial Health System, the North Broward Hospital District, Halifax Hospital Medical Center, the West Volusia Hospital Authority and the Miami-Dade School Board.
The lawsuit centers on the settlements Moody’s office reached — and similar lawsuits that the hospital systems and the school board have filed.
Moody’s office is seeking a ruling from a Leon County circuit judge that it has the power to essentially override “subordinate” claims by the hospital systems and the school board. The lawsuit said the settlements require releasing claims from government agencies that are considered “subdivisions” of the state.