10th District: Family of soccer player who overdosed can prosecute pharmacy for manslaughter

Image of a young man wearing a blue and gold football shirt.

Stephen Mehrer died of a drug overdose in 2017. An appeals court ruled that his parents can proceed with their lawsuit against Walgreens over his death.

Image of a young man wearing a blue and gold football shirt.

Stephen Mehrer died of a drug overdose in 2017. An appeals court ruled that his parents can proceed with their lawsuit against Walgreens over his death.

Walgreens pharmacy dispensed 260 doses of opioid pain relievers to a two-time Ohio high school football player less than two months after injuring his shoulder during a game. Nine years later, Dublin Jerome High School graduate died of a drug overdose.

Stephen Mehrer’s parents said the initial doses ultimately led to their son’s death. A Franklin County common pleas court dismissed the lawsuit. But the 10th District Court of Appeals last week ruled that the case could go forward, holding that the family raised a legitimate argument that the athlete’s overdose could be traced to the pharmacy’s failure to report the large number of pills prescribed in a short period of time.

The trial court had granted Walgreens’ summary judgment request, holding that the initial prescriptions that had been filled in 2008 could not have caused Mehrer’s death in 2017. Writing for the 10th District, Judge Michael C. Mentel said stated that it is easy to see how the trial court struggled to find the connection between the two events, but noted that “addiction is a ‘long-term, chronic and relapsing disease’ which is complex to assess in this context “.

The pharmacy fills prescriptions for painkillers from two doctors
In October 2009, Mehrer tore his rotator cuff while playing soccer for Dublin Jerome High School. His doctor, Kenneth Westerheide, prescribed 50 pills of hydrocodone for pain relief. In 2009, hydrocodone was a Schedule III substance, considered by the Federal Drug Enforcement Administration (DEA) to be addictive, but less likely to be abused than a more potent Schedule II pain reliever. Mehrer underwent shoulder surgery in November 2009. On the day of the surgery, Walgreens dispensed 60 pills of hydrocodone prescribed by Westerheide. The next day, Walgreens filled Mehrer with a prescription for 50 pills of oxycodone prescribed by Dr. Richard Fischer.

Oxycodone is a Schedule II substance and is considered highly addictive by the DEA. Five days after giving Mehrer the 50 pills of oxycodone prescribed by Fischer, Walgreens gave Mehrer another 50 pills of oxycodone prescribed by Westerheide. And five days later, Walgreens dispensed 50 more hydrocodone pills to Mehrer.

Mehrer received a scholarship to join the Kent State University football team as a college freshman, but his parents say he immediately became addicted to prescription painkillers based on the initial pills dispensed by Walgreens. Mehrer entered drug rehabilitation five times to treat his addiction. Despite a period of sobriety, he died in October 2017 of an overdose of a combination of oxycodone, fentanyl and acetyl, all opioid painkillers.

The pharmacy failed to mark the dose distribution, the parents say
Mehrer’s parents initially sued Walgreens in 2019 and revised the lawsuit in 2020, claiming the company’s action led to their son’s wrongful death. The two doctors, who were never disciplined for overprescribing the drug, testified that their prescriptions were reasonable and appropriate for treating Mehrer’s pain following surgery.

In a deposition, Ryan Wagner, a Walgreens representative, noted that the company’s record retention policy kept patient records for six years and the company no longer had complete records of Mehrer’s prescriptions. Wagner described the process the company used in 2009, which required pharmacists to ensure that all prescriptions for a controlled substance were dispensed for a legitimate medical purpose.

He explained that the company’s computer system has “safety locks” that allowed pharmacists to determine if a patient had multiple prescriptions for the same drug and how long a patient was refilling a prescription. If a patient tried to fill a prescription too early, the computer system would alert the pharmacist to consult with the patient, caregiver and prescriber, Wagner said.

Records indicated that a Walgreens pharmacist conducted a consultation with Westerheide following the initial prescription, but there was no evidence that the pharmacy conducted the requested consultations on the other five. Three of the prescriptions indicated that consultations had been declined, but Mehrer’s parents do not recall whether any consultations were ever offered about the prescriptions.

Filling prescriptions didn’t kill the athlete years later, drugstore counters
In February 2021, Walgreens asked the trial court for a summary judgment. The company argued that its pharmacists filling prescriptions were not the cause of the ultimate injury that led to Mehrer’s death. The company also argued that under the “educated intermediary doctrine,” Ohio pharmacists generally have no legal obligation to warn patients of the adverse reactions, side effects, or dangers of prescribed drugs for every prescription they fill. compile.

Dr. Corey Waller, who serves in various capacities with the American Society of Addiction Medicine, testified on behalf of the parents. He said Mehrer’s exposure to Walgreens’ prescribed opioids may have led to an addiction and could cause “fundamental changes to the brain.” He argued that the changes in the brain are progressive and, once developed, are persistent years after opioid use has stopped.

In April 2022, the court granted summary judgment to Walgreens, focusing only on the argument that Walgreens’ actions were not the cause of Mehrer’s death. The trial court found that Waller’s testimony was too “speculative” to link the initial prescriptions to the athlete’s subsequent death. The parents appealed the decision to the 10th District.

The appeals court examines the expert’s testimony
Judge Mental explains that when the losing party challenges a summary judgment, the appellate court must determine whether there are “genuine matters of material fact” that require the decision of the court or a jury. The opinion noted that under Ohio manslaughter law, RC 2125.01(A)(1), the Mehrers had to prove that Walgreens’ actions were the “proximate cause” of his son’s death. And to prove it, the family had to prove that the death was the “natural and probable consequence” that could have been foreseen or reasonably anticipated by Walgreens dispensing the pills.

The Tenth District cited testimony from Waller, the Mehrers’ appraiser, who noted that the report did not indicate that Walgreens’ computer system reported the release of 260 painkillers within two months or that pharmacists were alerted. The record did not indicate that the pharmacist made calls to prescribers, the opinion stated.

Waller argued that the danger of addiction to such a dosage was “identifiable and knowable” by the pharmacy and that the time between addiction and ultimate death does not negate Walgreens’ responsibility. She suggested that if a surgeon left scissors in the belly of a patient undergoing surgery and the scissors punctured the patient eight years later and caused the patient’s death, the surgeon would be responsible for the death. Waller said the same argument applies to Walgreens in this case.

The Tenth District noted that there is controversy as to whether pharmacists made the calls. The court also indicated that while the treating physician testified that there was a need for painkillers following surgery, there is reasonable controversy over the need for opioids and whether the amount Walgreens dispensed was appropriate.

Waller’s assessment raised enough concern to refer the matter back to the court for further review, the 10th District ruled. The court was also instructed to consider Walgreens’ other claim that it was not liable under the learned broker doctrine. The opinion stated that it was not for the Tenth District to decide at this stage of the case whether the parents’ claims were substantiated.

Justices Laurel Beatty Blunt and Terri Jamison joined Judge Mentel’s opinion.

Mehrer Estate vs. Walgreens Specialty Pharmacy2023-Ohio-2070.

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