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Tenth District: Family of Football Player Who Overdosed Can Pursue Pharmacy for Wrongful Death

Image of a young man wearing a blue and gold football jersey.

Stephen Mehrer died of a drug overdose in 2017. An appeals court ruled his parents can proceed in their lawsuit against Walgreens for his death.

Image of a young man wearing a blue and gold football jersey.

Stephen Mehrer died of a drug overdose in 2017. An appeals court ruled his parents can proceed in their lawsuit against Walgreens for his death.

Walgreens pharmacy dispensed 260 doses of opioid painkillers to a two-time all-Ohio high school football player less than two months after he injured his shoulder in a game. Nine years later, the Dublin Jerome High School graduate died of a drug overdose.

The parents of Stephen Mehrer claimed the initial doses ultimately led to their son’s death. A Franklin County Common Pleas Court dismissed the lawsuit. But last week the Tenth District Court of Appeals ruled the case could go forward, finding the family has raised a legitimate argument that the athlete’s overdose could be traced to the pharmacy’s failure to flag the large number of pills prescribed in a short period of time.

The trial court had granted Walgreens’ request for summary judgment, finding the initial prescriptions that were filled in 2008 couldn’t have caused Mehrer’s death in 2017. Writing for the Tenth District, Judge Michael C. Mentel stated it is easy to see how the trial court struggled to find the connection between the two events, but noted that “addiction is a ‘long-term, chronic, and relapsing disease’ that is complex to evaluate in this context.”

Pharmacy Fills Painkiller Prescriptions From Two Doctors
In October 2009, Mehrer tore a rotator cuff while playing football for Dublin Jerome High School. His doctor, Kenneth Westerheide, prescribed 50 pills of hydrocodone to help with the pain. In 2009, hydrocodone was a Schedule III substance, which was considered by the federal Drug Enforcement Administration (DEA) to be addictive, but less likely to be abused than a more powerful Schedule II painkiller. Mehrer underwent surgery on the shoulder in November 2009. On the day of surgery, Walgreens dispensed 60 hydrocodone pills prescribed by Westerheide. The next day, Walgreens filled a prescription to Mehrer for 50 oxycodone pills prescribed by Dr. Richard Fischer.

Oxycodone is a Schedule II substance and is considered by the DEA to be highly addictive. Five days after giving Mehrer the 50 oxycodone pills prescribed by Fischer, Walgreens gave Mehrer 50 more oxycodone pills prescribed by Westerheide. And five days later, Walgreens dispensed 50 more hydrocodone pills to Mehrer.

Mehrer received a scholarship to join the Kent State University football team as a college freshman, but his parents claim he immediately became addicted to the prescription painkillers based on the initial pills dispensed by Walgreens. Mehrer entered drug rehabilitation five times to treat his addiction. Despite a period of sobriety, he died in October 2017 by overdosing on a combination of oxycodone, fentanyl, and acetyl — all opioid painkillers.

Pharmacy Failed to Flag Dose Distribution, Parents Assert
Mehrer’s parents initially sued Walgreens in 2019 and revised the lawsuit in 2020, claiming the company’s action led to the wrongful death of their son. The two physicians, who were never disciplined for overprescribing the medication, testified that their prescriptions were reasonable and appropriate for treating Mehrer’s pain following surgery.

In a deposition, Ryan Wagner, a Walgreens representative, noted the company’s data retention policy kept patient records for six years, and the company no longer had the complete records of Mehrer’s prescriptions. Wagner described the process the company used in 2009, which required pharmacists to ensure all prescriptions for a controlled substance must be dispensed for a legitimate medical purpose.

He explained the company’s computer system has “safety blocks” that allowed pharmacists to determine if a patient had multiple prescriptions to the same drug and how early a patient was refilling a prescription. If a patient tried to fill a prescription too soon, the computer system would alert the pharmacist to consult with the patient, caregiver, and prescriber, Wagner said.

The records indicated that a Walgreens pharmacist conducted a consultation with Westerheide after the initial prescription, but there was no evidence the pharmacy conducted the required consultations on the other five. Three of the prescriptions indicated that consultations were declined, but Mehrer’s parents do not recall if they were ever offered consultations about the prescriptions.

Filling Prescriptions Did Not Kill Athlete Years Later, Pharmacy Counters
In February 2021, Walgreens asked the trial court for summary judgment. The company argued its pharmacists filling the prescriptions wasn’t the cause of the ultimate injury that led to Mehrer’s death. The company also argued that under the “learned intermediary doctrine,” pharmacists in Ohio generally don’t have a legal obligation to warn patients of the adverse reactions, side effects, or dangers of prescriptions drugs for every prescription they fill.

Dr. Corey Waller, who serves in various capacities with the American Society of Addiction Medicine, testified on behalf of the parents. He stated that Mehrer’s exposure to the opioids prescribed by Walgreens could have led to an addiction and could cause “fundamental changes to the brain.” He maintained the changes to the brain are progressive and, once developed, are persistent years after discontinuation of opioid use.

In April 2022, the trial court granted summary judgement to Walgreens, focusing only on the argument that Walgreens’ actions weren’t the cause of Mehrer’s death. The trial court found that Waller’s testimony was too “speculative” to connect the initial prescriptions to the athlete’s subsequent death. The parents appealed the decision to the Tenth District.

Appellate Court Examines Expert’s Testimony
Judge Mental explains that when the losing party challenges a summary judgment, the appellate court must determine if there are any “genuine issues of material facts” that require the trial court or a jury to decide. The opinion noted that under the Ohio wrongful death law, R.C. 2125.01(A)(1), the Mehrers had to prove the actions of Walgreens were the “proximate cause” of their son’s death. And to prove it, the family had to show that the death was the “natural and probable consequences” that could have been foreseen or reasonably anticipated from Walgreens dispensing the pills.

The Tenth District cited the testimony of Waller, the Mehrers’ expert witness, who noted the record didn’t indicate that the Walgreens computer system flagged the release of 260 painkillers within two months or if the pharmacists were alerted. The record didn’t indicate the pharmacist made any calls to the prescribers, the opinion stated.

Waller maintained the danger of addiction from such a dosage was “identifiable and knowable” by the pharmacy and that the time between the addiction and the ultimate death doesn’t negate Walgreens’ responsibility. He suggested that if a surgeon left scissors in the belly of a patient undergoing surgery, and the scissors punctured the patient eight years later and caused the patient to die, the surgeon would be liable for the death. Waller asserted that same argument applies to Walgreens in this case.

The Tenth District noted that there is a dispute as to whether the pharmacists made the calls. The court also indicated that while the treating physician testified there was a need for painkillers following the surgery, there is a reasonable dispute as to whether opioids were necessary and whether the amount dispensed by Walgreens was appropriate.

Waller’s assessment raised enough concerns to return the matter to the trial court for further review, the Tenth District ruled. The trial court was also instructed to consider Walgreens’ other claim that it wasn’t responsible under the learned intermediary doctrine. The opinion stated that it wasn’t for the Tenth District to decide at this stage in the case if the parents’ claims had merit.

Judges Laurel Beatty Blunt and Terri Jamison joined Judge Mentel’s opinion.

Estate of Mehrer v. Walgreens Specialty Pharmacy2023-Ohio-2070.

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