US District Court of the Northern District of Ohio Judge Dan Polster Friday denied a request by five retail pharmacy chains to dismiss opioid lawsuits filed by two Ohio counties.

Lake and Trumbull Counties brought a common law absolute public nuisance claim against several pharmacies for dispensing prescription opioids to customers. The court previously concluded in 2018 that the related act of distributing prescription opioids survived a motion to dismiss under Ohio law.

The plaintiffs alleged that the pharmacies violated the Federal Controlled Substances Act and Ohio controlled substance laws by failing to adequately train pharmacists and pharmacy technicians to properly handle opioid painkiller prescriptions. Plaintiffs also alleged that the pharmacies  “systemically ignored red flags that they were fueling a black market,” causing a “skyrocket” in the counties and facilitating and encouraging the illegal diversion of opioids.

The defendants argued that the claims should be dismissed because Ohio statutes governing drug distribution displaced common law and entirely precluded the plaintiffs’ claims. They argued that the plaintiffs had to bring their claim under Ohio Administrative Code § 4729, claiming that Ohio law only allowed the statutory public nuisance claim under that statute. The judge concluded that the statute did not expressly abrogate any common law claim, and there was no clear language that indicated this.

The defendants also argued that Ohio’s regulatory scheme implied that the General Assembly intended to displace common law and limit public nuisance liability. They argued that the Ohio legislature did not demonstrate an intent for the statutory provisions to be “cumulative” to common law, citing cases arising under the Uniform Commercial Code (UCC). The judge rejected both claims, stating that the UCC expressly provides that its provisions displace some, but not all, common law claims. Where the UCC governs, a plaintiff cannot assert a conflicting common law claim to “circumvent the liabilities, responsibilities, and remedies.”

The defendants also asserted that they were entitled to a dismissal of claims because only their pharmacist employees had a duty to prevent diversion of opioids. The judge rejected this contention, because both pharmacists and pharmacies are “practitioners” and “dispensers” under the act, so they bear all the obligations imposed upon practitioners and dispensers.

The judge found that the plaintiffs sufficiently alleged that the pharmacies engaged in unlawful conduct. Because the defendants did not show that the plaintiffs failed to state a claim for which relief can be granted, Polster denied the defendants’ motion to dismiss.