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鈥檚 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鈥檚 office in 2018, accused five of the nation鈥檚 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鈥檚 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鈥檚 office and Walgreens have bickered over expert witnesses, document production and the kind of information jurors should be allowed to scrutinize.
For example, Walgreens鈥� 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.
鈥淥bviously, the tobacco industry is a lightning rod for people鈥檚 emotions everywhere, but certainly in Florida. People have very, very strong feelings about the tobacco industry and the way it conducted itself,鈥� Walgreens attorney Kaspar Stoffelmayr told Byrd during an April 1 video hearing. 鈥淚f you want to present the jury with evidence about why opioids are a serious problem in the community, you鈥檝e got to present them with evidence about the problems caused by opioids.鈥�
It's 鈥渘ot proper to try and gussy that up with evidence鈥� about harms related to tobacco, environmental pollution, 鈥渁nd anything else,鈥� he said.
鈥淭he evidence has got to be about what the case is about,鈥� Stoffelmayr said.
But Daniel Paul Johnson, an attorney who represents the state, argued that 鈥渢obacco comparisons are highly relevant鈥� to the case.
鈥淚t 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,鈥� he said, asking Byrd to reserve ruling on any tobacco objections until the trial.
Byrd granted the state鈥檚 request, with a caution.
鈥淚 do think there could be some issues in making tobacco comparisons that might outweigh whatever value you鈥檙e trying to use it for. I do think there鈥檚 other comparisons you could probably make,鈥� she said.
The state and Walgreens also squabbled over how much information jurors should receive about the retail chain鈥檚 finances and earnings.
鈥淚t is irrelevant for many reasons, including the fact that Walgreens鈥� overall finances go far beyond the state of Florida,鈥� Walgreens attorney Jordan Golds said.
Even within Florida, 鈥渓arge parts of Walgreens鈥� business has nothing to do with opioids at all,鈥� he argued.
Courts have been 鈥渨ary鈥� to admit evidence about defendants鈥� wealth 鈥渂ecause of the well-accepted understanding that jurors have a tendency to disfavor the rich,鈥� Golds said.
鈥淪o to be fair, basically every juror is already going to know that Walgreens is a large national chain, but that doesn鈥檛 erase this risk that would be presented by arguments or evidence about Walgreens鈥� financials that have nothing to do with Florida or opioids,鈥� he added.
But Minsuk Han, who represents the state, told Byrd that the state should be allowed to discuss Walgreens鈥� overall business, including its number of stores and employees.
鈥淭he magnitude and the nationwide scope of Walgreens鈥� 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,鈥� Han argued.
Walgreens鈥� profitability is also relevant, he said, pointing to the chain鈥檚 鈥減rofit-driven policies and its refusal to properly staff its pharmacies.鈥�
鈥淲algreens鈥� 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,鈥� Han said.
Walgreens鈥� 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鈥檚 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鈥檚 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鈥檚 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鈥檚 office reached 鈥� and similar lawsuits that the hospital systems and the school board have filed.
Moody鈥檚 office is seeking a ruling from a Leon County circuit judge that it has the power to essentially override 鈥渟ubordinate鈥� claims by the hospital systems and the school board. The lawsuit said the settlements require releasing claims from government agencies that are considered 鈥渟ubdivisions鈥� of the state.
