Two Ohio counties won a $650.9 million judgment against three of the nation’s largest chain pharmacies for their role in the opioid addiction epidemic. Now a federal court hearing the pharmacies’ appeal is asking the Supreme Court of Ohio whether the companies could create a public nuisance under Ohio law by selling legal products.

Thousands of lawsuits from around the nation were filed against the makers and sellers of prescription opioids and consolidated into multidistrict federal litigation in U.S. District Court in Cleveland. Many government agencies argued that pharmacies can be sued for creating a public nuisance by selling opioids. The federal court conducted a “bellwether” trial based on claims made by Lake and Trumbull counties against CVS, Walgreens, and Walmart.

A jury sided with the counties, and the trial court agreed to a $650.9 million “abatement plan” providing the counties with the funds to use to treat people with opioid addiction, train first responders, and other purposes. The pharmacies appealed the decision to the Sixth U.S. Circuit Court of Appeals. Among the pharmacies’ arguments was that only the Ohio Product Liability Act (OPLA) could be the basis of a lawsuit seeking compensation for the marketing, distribution, or sale of a product. That law doesn’t allow for product makers and sellers to be sued for creating a public nuisance, they claim.

The federal appeals court paused its proceedings to ask the Supreme Court of Ohio to clarify whether the state OPLA bars the counties from making the public nuisance claim. The Court agreed to answer the question.

Gun Lawsuit Triggered Changes to Product Liability Law
In 1999, Cincinnati sued 15 handgun manufacturers and a handgun distributor claiming their conduct fostered the criminal misuse of firearms and created a public nuisance. Court decisions found that under Ohio law, a case against the gun makers and dealers could proceed. The General Assembly reacted to the court decisions, by twice amending the OPLA to clarify that the act limits lawsuits based on the sale of products.

The pharmacies noted that in 2007, Ohio lawmakers amended the OPLA to include “any public nuisance” claim. The pharmacies argue that the counties had to invoke the OPLA to sue, and that all other legal theories claiming the sellers were liable were abolished by the amended law.

The counties counter that the OPLA doesn’t apply. They say the law is limited to sellers of defective products. They point to a prior lawsuit where, unbeknownst to several pharmacies, they were selling a defective blood pressure medication. The pharmacies were successfully protected by the OPLA, the counties note.

By contrast, the counties argue, painkillers sold by the pharmacies were legal, non-defective products. The problem, the counties assert, is that the pharmacies ignored federal and state laws and internal procedures that should have “red flagged” the high volume ofsales of the medications. The OPLA has no relevance and provides no protection to those whose reckless dispensing of the medications wreaked havoc on their communities, the counties argue.

Watch Oral Arguments Online
The Supreme Court will hear In re National Prescription Opiate Litigation and three other cases, described below, during oral arguments on March 26. Oral arguments begin at 9 a.m. The arguments will be streamed live online at SupremeCourt.Ohio.gov and on the Ohio Channel, where they are archived.

Detailed case previews from the Office of Public Information are available by clicking on the name of each case.

TIF Tax Exemptions
A city voted in 2017 to extend an earlier property tax exemption for a tax-increment-financing (TIF) district from 16 to 30 years. The state Supreme Court ruled in May 2021 that the extension was correctly denied by tax officials because the exemption was new, rather than an extension. Tax officials determined that the city owed more than $2 million to organizations such as schools, parks, and libraries that were entitled to the property taxes that had been set aside for several years for the TIF. In State ex rel. Obetz v. Franklin County auditor and treasurer, the city contends that the tax officials withheld funds owed to the city and reallocated the money to the organizations. However, the officials had no legal authority to take that step, the city asserts. The auditor and treasurer argue they are authorized to correct errors in property tax distributions.

School Board Tax Appeals
In an unrelated tax case, a revised state law allows local school boards of education to appeal the valuation of a private property to the county board of revision, but as of July 2022, a school board can no longer appeal to the state Board of Tax Appeals (BTA). A Union County school district sought a higher value for a commercial property in May 2022. The county board of revision disagreed. The school board then appealed to the BTA in September 2022. The BTA dismissed the case, stating that, as of July, it could no longer consider school board appeals. In Marysville Exempted Village Schools v. Union County Board of Revision, the Court will consider whether the school board can appeal to the BTA because it initiated its appeal at the local level before the new law took effect.

Substantial Impairment
A health care employee who worked in a private residence in Hamilton County was indicted in November 2019 on seven counts of rape. He had been caring for four children with developmental disabilities in the house. An adult daughter with cerebral palsy also lived at home, and she and the worker engaged in sexual activity for more than a year. The health care worker was convicted on one count based on the adult daughter’s substantially impaired ability to resist or consent due to her limited intellectual functioning. In State v. Gasper, the worker argues the jury based its guilty verdict on medication the daughter took for cerebral palsy that made her sleepy. But substantial impairment must be based on a permanent condition, he maintains. The prosecutor responds that the jury is presumed to have followed the instruction about the meaning of “substantial impairment.”