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Walgreens presents closing arguments as San Francisco opioid trial ends

The pharmacy chain's attorney had to withstand grilling from the federal judge, who found some of Walgreens' arguments unconvincing.

(CN) — The pharmacy chain Walgreens presented their closing argument Wednesday in San Francisco's "public nuisance" lawsuit seeking to recover damages from the opioid crisis. The company, which also acts as a drug distributor, is the last remaining defendant in what is widely seen as a bellwether case (a settlement with three other defendants was announced Tuesday morning).

Throughout the 11-week trial, San Francisco argued that Walgreens had pressured its employees to fill prescriptions faster in order to increase profit and deliberately left pharmacies understaffed, making certain safety protocols more difficult. This carefree stance toward highly addictive opioids, they argued, helped fuel the overdose crisis in the city.

In his closing remarks, Walgreens attorney Brian Swanson argued that the evidence presented by San Francisco didn't directly implicate his client.

"Not a single witness came in and said they’d been harmed by an opiate dispensed at a Walgreens pharmacy," said Swanson. "If Walgreens were responsible for dispensing medicines that wound up on the street, surely someone from law enforcement would have a record of that. We heard nothing about that."

U.S. District Judge Charles Breyer pressed Swanson on this point.

"Absent a single prescription that is inappropriate, they can’t prove their case?" Breyer asked.

"Yes," Swanson replied.

"I don’t know why they can’t do it collectively, why you can’t show that a pool of prescriptions were suspicious," Breyer said, after some back-and-forth. "They're not saying the vast majority of prescriptions are inappropriate. They're saying some were, and they contributed in some measure to the nuisance. That’s their case. It may not be good enough. But that’s their case. And anything else is a straw man."

Breyer added that much of San Francisco's case rested on the fact that Walgreens devoted a minuscule amount of resources to preventing diversion — that is, to prevent drugs that made their way into the hands of people taking them for recreation or to feed an addiction.

"If all of that were true," Swanson said, "how could it be they couldn’t identify a single prescription?"

"Because they felt they didn’t have to!" said Breyer, cutting him off.

While Breyer had engaged with the plaintiffs directly only briefly during their closing arguments on Tuesday, he questioned Swanson repeatedly throughout Wednesday's hearing, at times almost grilling the lawyer.

A number of courts, including one in West Virginia and one in Orange County, California, have already rejected "public nuisance" claims made against opioid distributors and manufacturers — though never a pharmacy. Swanson repeatedly cited rulings in those two cases.

"It is speculative to say that just because orders that were flagged or that should have been flagged (even a large amount) were shipped without due diligence, there was any diversion at all caused by the lack of flagging or lack of due diligence," wrote U.S. District Judge David Faber in the West Virginia case.

Judge Breyer indicated that he didn't find the West Virginia ruling all that relevant.

"It’s so different from the record in this case," he said. "There is evidence that Walgreens didn’t use this system," referring to the system of checks and balances used by the drug distributors in the West Virginia case.

Under questioning, Swanson seemed to admit that he didn't think the opioid crisis was a public nuisance — "it's not pollution going into a river," he said. But his larger point was that Walgreen's behavior hadn't been decisive in causing the crisis.

"If you take away Walgreens, if you remove Walgreens from the equation, is the opioid crisis in San Francisco any different?" he asked. "And I submit that it’s not. And the plaintiffs haven’t submitted any evidence that it is."

San Francisco's lawyers declined the opportunity to respond to any of Swanson's arguments.

The case is now in the hands of Judge Breyer. The 80-year-old Bill Clinton appointee, the brother of former U.S. Supreme Court Judge Stephen Breyer, indicated that his decision would be coming relatively soon.

"This is the only thing I’m doing," he said. "This is right at the top. It’s easier to make a decision closer to the receipt of evidence."

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