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San Francisco ‘public nuisance’ opioid lawsuit winds down, with only one defendant left

Pharmacy giant Walgreens is the last defendant left after Teva and Allergan reached settlements with San Francisco days before the trial wrapped up.

(CN) — Lawyers for city-county of San Francisco presented closing arguments Tuesday in a public nuisance lawsuit which seeks to recover damages incurred as a result of the opioid epidemic. But only one defendant remains after two companies settled days before the end of the trial.

The suit, filed in 2018, was initially aimed at a bevy of defendants — drugmakers, manufacturers, distributors and pharmacies — including Purdue Pharma (which made and marketed Oxycontin, widely credited with sewing the seeds of the nation's opioid crisis), Johnson & Johnson and McKesson. One by one, the defendants exited the case. Purdue declared bankruptcy. Johnson & Johnson and McKesson signed on to a $26 billion global settlement which resolved more than 4,000 claims by state and local governments, including San Francisco's. Other companies signed individual agreements. By the time the bench trial started in April, only four defendants remained.

On Tuesday morning, hours before plaintiffs' lawyers began their closing arguments, it was announced that San Francisco had come to terms with Teva and Allergan. Israel-based Teva agreed to pay the city $25 million in cash and contribute $20 million worth of Narcan, a drug that treats opiate overdoses. The settlement also resolved San Francisco's claims against the drug distributor Anda Inc., which was purchased by Teva in 2016. AbbVie, the parent company of Allergan, agreed to pay $13 million for its role in perpetuating the opioid crisis.

That left one plaintiff, pharmacy giant Walgreens. The company has denied any wrongdoing.

"Walgreens is the only defendant in this case that won’t look in the mirror and say, what did we do wrong?" said attorney Peter Mougey, in his closing remarks.

Attorney Richard Heimann argued Walgreens' "corporate culture prioritized profits and sales over all other aspects of the company’s business," that both distribution centers and pharmacies were "overtaxed and understaffed," leading to poor oversight. He said that the company allocated "insufficient resources" toward making sure that suspicious prescriptions — for example, those written by pill-mill doctors serving addicts — weren't filled. His co-counsel, Jayne Conroy, described a "fill, fill, fill" culture at Walgreens.

One Walgreens corporate document from 2010 read, “The best evidence of a well-run pharmacy is the increase in prescriptions and pharmacy sales.”

During the 11-week trial, multiple former Walgreens employees testified they had been pressured to fill prescriptions, and to ignore so-called "red flags" about certain orders. Other pharmacists testified their stores were so understaffed that due diligence was all but impossible. One called the short-staffing a "chronic problem," adding, "I could not even take a bathroom break."

According to an internal complaint made by a Walgreens employee, the manager of a pharmacy recieved a bonus based on the volume of prescription sales.

The plaintiffs presented evidence that Walgreens pharmacies sold more than 20 million opioid pills to patients in the San Francisco Bay Area, prescribed by doctors who were later disciplined for opioid misconduct.

Conroy argued Walgreens' behavior "contributed to a public nuisance in the manner in which it distributed opioids to its stores, and distributed opioids to its customers. It failed to guard against the diversion of these drugs." The public nuisance, they argued, comprised not just overdose deaths and hospitalizations, but also the draining of public resources. Park rangers, librarians and other city employees testified about tens of thousands of used needles strewn about and homeless drug addicts overdosing in public.

This is not the first time a public nuisance case against a drug company has made it to trial. This past November, the Oklahoma Supreme Court overturned a $465 million ruling against Johnson & Johnson, rejecting the public nuisance argument. That same month, an Orange County Superior Court judge found in favor of the defendants in a public nuisance suit brought by four Southern California cities and counties. In his ruling, the judge wrote, "There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need."

Most experts agree that the opioid overdose epidemic, which claimed nearly 92,000 lives in 2020, started with Purdue Pharma's aggressive marketing of the powerful opiate Oxycontin. When the federal government finally cracked down on the drug, many users who had become addicted switched to heroin. More recently, many addicts have switched to Fentanyl, a synthetic opiate that is far easier to overdose on than heroin.

During the trial, Walgreens disputed this narrative. One of its witnesses, Bay Area physician Dr. Douglas Tucker, argued the rise in addiction and death from opioids is the result of the increase in recreational drug use that started in the 1970s.

Walgreens attorneys will present their closing arguments Wednesday. The case will then be decided by U.S. District Judge Charles R. Breyer, a Bill Clinton nominee and the brother of former U.S. Supreme Court Judge Stephen Breyer.

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