The Ohio Supreme Court has ruled that Trumbull and Lake counties' federal lawsuit against major pharmacy chains over their roles in contributing to the opioid crisis was not based on the correct law and cannot move forward. 

Trumbull and Lake counties had sued CVS, Walgreens and Walmart, claiming they'd created a "public nuisance," by supplying the pills that led in part to the addiction crisis. 

The suit had been considered a "bellwether," meaning other counties would likely follow if the two counties were successful. 

They were, initially, winning $650 million. 

The pharmacies are appealing that award, however, and during the course of that appeal, which is before the Sixth District Court of Appeals, the Ohio Supreme Court was asked to determine if the suit was brought under the right area of the law. 

At issue was whether existing law, the Ohio Product Liability Act, should have been the proper way to pursue damages. That's a law used to sue a company over damages done by their products, such as when they are defective. 

In Tuesday's Supreme Court ruling, a narrow majority agreed with the pharmacies that OPLA is the appropriate way to pursue legal action against a product manufacturer, meaning a lawsuit against the pharmacies on the grounds of a public nuisance is not proper. 

"Under the changes to Ohio's Product Liability Act, compensatory damages owed from a public nuisance like the opioid crisis would be subject to that higher standard of proof in the Product Liability Act," Attorney Marc Dann said. "The judge is going to have to go back, maybe even have a new trial with the three pharmacy chains to see if the jury will once again agree that they should pay," he said.

Dann said this decision is significant because it changes everything, especially when it comes to filing lawsuits under the Public Nuisance Law.

"There are lots of other situations where the courts have found public nuisance, things like PFAS or forever chemicals that have infected water systems around the state and around the country many of those cases were brought on a theory of public nuisance in Ohio. Cases for nanoplastics that we're learning increasingly are causing harm to people and there are lawsuits that are being originated to go after them," Dann said. "Public nuisance is kind of an easy catch-all way to bring those cases. I think the work that lawyers are going to have to do is going to be much tougher to hold corporate polluters or people who harm people with dangerous drugs at a mass scale like the opioid industry did, it's going to be tougher to bring those cases going forward," he said. 

Writing for the majority, Justice Joe Deters said OPLA has language included that covers public nuisances, saying:

"The plain language of the OPLA abrogates product-liability claims, including product-related public-nuisance claims seeking equitable relief," Deters wrote. 

Denny Malloy, chair of the Trumbull County Commissioners and the only current commissioner who will remain in office next year, said he was unaware of the decision and did not know what the county's next moves may be.

Trumbull County Commissioner Mauro Cantalamessa expressed disappointment in a statement that reads:

"We are obviously disappointed that, first, this case was kicked back to the Ohio Supreme Court from the 6th Circuit. We were able to demonstrate in federal court how the providers and distributors were liable in the opioid crisis in Trumbull and Lake County. And although we had received settlements from Giant Eagle and Rite Aid respectively, we felt these other distributors should have been held accountable as well. These funds would have gone right back into the community to continue to police, educate, and properly treat an epidemic that continues to plague our area. So it’s no doubt a big loss to our area."

The appeal before the Sixth District Court is still pending.