Alaska high court revives opioid lawsuit against pharmacy operators

By Nate Raymond

Nov 6 (Reuters) - Alaska's top court ruled on Friday that the state can pursue a lawsuit alleging pharmacies operated by Albertsons ACI.N and Kroger KR.N helped fuel the opioid epidemic by failing to meet their obligations when dispensing addictive painkillers.

The Alaska Supreme Court reversed a judge's 2024 ruling dismissing the case brought by the state's attorney general against the operators of the Safeway and Fred Meyer grocery chains, finding the state had plausibly alleged the pharmacies' actions created a public nuisance.

"Taking the State’s allegations as true, we hold that the pharmacies’ failure to fulfill their legal obligations when dispensing opioids unreasonably interfered with public rights protected by the common law," Justice Jude Pate wrote for the unanimous five-justice court.

The Alaska Department of Law in a statement welcomed the ruling and said it looked forward to the case moving forward in the coming months.

Spokespeople for Albertsons and Kroger did not respond to requests for comment.

The lawsuit is among thousands brought by states and local governments seeking to hold pharmaceutical manufacturers, drug distributors and pharmacies responsible for a deadly opioid epidemic that for years ravaged the US.

In Alaska, the number of drug overdose deaths climbed steadily over the decade leading up to the state suing in 2022, according to the state. That included a 68% increase from 2020 to 2021.

Friday's ruling came a day after a judge in Washington state ordered Albertsons to pay $900 million in a similar case by that state's attorney general, who had opted to take the company to trial rather than join a $774 million nationwide settlement the company announced in April to resolve the cases against it.

Kroger in 2023 agreed to pay as much as $1.4 billion to resolve similar cases nationwide against it.

Alaska did not settle with those companies, though it did settle with Walgreens and Walmart, which were also defendants in the 2022 lawsuit. The state alleged the companies' pharmacies failed to monitor and report suspicious opioid prescriptions.

In 2024, a judge dismissed the state's public nuisance and consumer protection claims, prompting the appeal.

The Alaska Supreme Court largely agreed that most of the state's claims under its consumer protection statute could not be pursued, saying that under state law, the pharmacies could not be sued under that statute if their actions were already subject to Alaska's controlled substances regulations.

But it said Alaska could pursue a claim that the pharmacies misled the public about meeting their legal obligations and seek remedies for harms allegedly caused by the public nuisance the state alleges the companies created.

If the companies are found liable on that claim, the state contends they should be forced to address, or abate, the public nuisance by providing addiction treatment to patients and making naloxone widely available.

"Courts have recognized that similar allegations against opioid manufacturers and distributors are sufficient to constitute an interference with the rights to public health and public safety," Pate wrote.

The case is State of Alaska v Albertsons Companies, et al, Alaska Supreme Court, No. S-19048.

For Alaska: Laura Fox of the Alaska Department of Law

For Albertsons: Frank Citera of Greenberg Traurig

For Kroger: Rebecca Hozubin of Hozubin Moberly & Associates