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Litigating the U.S. Opioid Epidemic: Public Torts, Public Health,

and the Legacy of Big Tobacco

by Margaret Wilson | Spring 2019

The human and economic toll of the current U.S. opioid epidemic reflects a crisis needing urgent remedy. Thousands of lawsuits have been filed against doctors, hospitals, pharmacies, and pharmaceutical manufacturers and distributors over their roles in the epidemic. This tobacco litigation established historical precedent for an innovative public tort model being currently utilized in opioid litigation. The power of litigation as a tool to effect public health change arises in part from the court of public opinion, driven by document discovery disclosures and media attention exposing industry malfeasance. Rather than reject, due to weaknesses of the tobacco Master Settlement Agreement, the potential of litigation to address the opioid crisis and provide crucial funding to state and local governments, opioid litigation can build on the historical example of Big Tobacco and other public tort litigation to better ensure its efficacy by improving the direction of funds under a potential large-scale opioid settlement.

The human toll of the current opioid epidemic in the U.S. presents a staggering picture of a crisis needing urgent remedy. According to the Centers for Disease Control and Prevention (CDC), an average of 115 people die each day in the United States due to opioid overdoses.[1] For every person in the U.S. lost to gun violence, three people will die due to an opioid overdose,[2] and opioid addiction is now the leading cause of death for persons under the age of 50.[3] Few public health issues have gripped the American public in recent years like the current opioid epidemic. The staggering financial toll of the epidemic, reaching several hundred billion dollars,[4] has driven state and local governments to seek relief from this growing economic burden, as governments continue to pour funds into controlling and addressing the crisis and providing treatment and services to constituents. Governments are increasingly turning to litigation to seek compensation for the enormous costs of the crisis that pharmaceutical companies have arguably played a significant role in driving. This “public tort” approach to abating the opioid epidemic has drawn significant comparisons to suits against Big Tobacco, primarily in the 1990s, and the suits brought by states that culminated in the tobacco Master Settlement Agreement (MSA), the largest civil litigation settlement in U.S. history, which involved major tobacco manufacturers and 46 U.S. states. (The other four settled independently.)[5]While opponents of ongoing opioid litigation vary in their critiques, both opponents and supporters of opioid litigation have increasingly called upon the historical precedent of “Big Tobacco” and the legacy of the MSA when constructing positive or negative conceptions of the potential of opioid litigation to effect public health and policy change.

In The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product That Defined America, Allan Brandt asserts that “[t]he historical development of American tort law is predicated on the theory that it leads to greater safety of consumer goods.”[6] Under this premise, manufacturers have a strong incentive to safeguard against possible harms of their products and, if harms become evident, modify their products. If manufacturers do not modify their products, “companies are responsible for the excess social costs that ensue.”[7] Strict liability torts, a specific type of tort claim that emerged following World War II, further expanded companies’ potential liability for harmful products, as a company’s actions no longer needed to be deemed “negligent” for a company to be responsible for its products’ harms. In other words, strict liability was “‘unburdened by fault.’”[8] Brandt writes, “Tort law became a tool for indirect regulatory policy; the full costs of the product would be borne by a company with appropriate incentives for safety and risk reduction.”[9] “Public tort” litigation is one of the more recent developments in product liability. Legal scholar Richard C. Ausness, in “Public Tort Litigation: Public Benefit or Public Nuisance,” defines public tort litigation as government-sponsored suits by “federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant’s alleged misconduct.”[10] Ausness notes that the Big Tobacco litigation of the 1990s, “in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers,”[11] is the most well-known example of public tort litigation and that subsequent public tort suits brought by municipalities against handgun manufacturers and paint companies (due to lead-based paint) were largely encouraged by the results of the states’ cases against tobacco companies.[12]

Much of the analysis, scholarship, and criticism of “Big Tobacco” litigation focuses on the famous Master Settlement Agreement of 1998. While this piece certainly does not seek to and cannot adequately provide a full analysis of the MSA, about which an enormous amount of varied scholarship exists, the legacy of the MSA is one of the most enduring and defining aspects of the “tobacco wars,” leading to its now-frequent invocation in discussions about opioid litigation and a similar potential opioid settlement. Despite the warranted criticism it has received some two decades later,[13] the MSA was undoubtedly a groundbreaking and unprecedented settlement that paved the way for attempts at similar public tort litigation and settlements, including current opioid litigation, and remains the largest civil litigation settlement in the history of the United States.[14] The MSA’s now-frequent invocation in discussions about opioid litigation and a potential global settlement, particularly in the national media,[15] demonstrates the MSA’s permanence and prominence in debates around the use of litigation to address public health crises, particularly when legislative routes stall or fail. However, the MSA’s primary weakness – the fact that a significant majority of the billions of dollars paid out to states was not directed towards anti-smoking or public health efforts – drives much of the wariness around the potential of an opioid settlement to significantly impact the pharmaceutical industry and the ongoing epidemic.

Since the release of OxyContin in 1996, thousands of lawsuits have been filed against doctors, hospitals, pharmacies, and pharmaceutical companies (manufacturers and distributors) over the opioid crisis in the U.S., with the majority of suits filed over the past five years and the most prominent suits those against opioid manufacturers and distributors. Over 1,400[16] opioid-related lawsuits have been filed by local governments (including Native American tribes and county and municipal governments) against opioid manufacturers and distributors, 30 states have filed lawsuits, and 41 states have joined together in a coalition to investigate opioid manufacturers as of November 2018.[17] Gluck, Hall, and Curfman argue in “Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Crisis” that local governments have been particularly motivated to file individually due to concerns that, as with the financial payouts of the 1998 tobacco Master Settlement Agreement, financial damages awarded in a potential opioid settlement with states may not reach local communities or may be used for purposes other than those related to the litigation complaints, such as opioid addiction treatment programs.[18]

In potentially the most significant development in the ongoing litigation, over 1,400 opioid lawsuits filed by county, municipal, and tribal governments, primarily against large pharmaceutical companies,[19] have been consolidated into Multidistrict Litigation (MDL) suit MDL 2804 in the United States District Court for the Northern District of Ohio,[20] the largest current opioid suit, under the purview of Judge Dan Aaron Polster.[21] Multidistrict courts were created under federal law and facilitate the consolidation of cases that are pursuing the same or similar claims against the same defendant(s)[22] - “civil actions involving one or more common questions of fact” - despite those cases being filed in different districts.[23] An MDL can then be brought before a single judge, maximizing efficiency, among other benefits.[24] Plaintiffs involved in the Ohio MDL are suing under claims including public nuisance, racketeering and corruption, fraud, and federal and state laws governing controlled substances.[25] Arguably the most important legal development out of any of the opioid litigation thus far,[26] the Ohio-based MDL has gained the attention of the media and legal scholars, in large part due to Judge Polster’s extremely bold statements[27] indicating that he intends to push the case towards settlement discussions as quickly as possible due to the urgency of mitigating the effects of the opioid epidemic.[28]

 

Litigation is ultimately an imperfect and imprecise instrument for effecting public health and policy change. Nonetheless, litigation thus far has begun to effect change in policy and marketing practices employed by pharmaceutical companies, a wealth of documents detailing illegal or objectionable industry practices and communications has been made public, and public opinion and media coverage around implicated pharmaceutical companies have shifted dramatically in recent years. While causes of the epidemic are multiple and contested, and have been extensively analyzed, the literature supports the notion that major pharmaceutical companies’ highly aggressive, multi-stage marketing tactics (particularly of OxyContin), often with unsubstantiated or false claims,[29] and insufficient monitoring of massive shipments of prescription opioids certainly exacerbated, if not helped initiate, the unprecedented current crisis the U.S. faces today. As the opioid epidemic continues to devastate the U.S. and exert a staggering economic toll on states and local communities, litigation may have the potential to abate the crisis that federal and state governments have struggled to solve and fund through its unique ability to cut through special interests that tie up avenues for legislative relief. In light of regulatory failures and inadequate funding in the context of the opioid epidemic, litigation has the potential to force pharmaceutical companies to the negotiating table without the influence of lobbyists or special interest groups exerted on legislatures, perhaps most influentially, in an MSA-style global settlement derived from multidistrict litigation. When legislative negotiations fail, such as in the case of the Congress’s failure to pass the 1997 tobacco agreement, litigation allowed tobacco manufacturers and states to independently reach a settlement (the MSA) on their own. It will be up to Attorneys General to consider the historical example of Big Tobacco litigation and the MSA and craft both a potential settlement in such a way that funds are restricted via trusts and other mechanisms such that funds obtained for the harms of the opioid epidemic are ultimately directed to such public health efforts.

REFERENCES

 

[1] Centers for Disease Control and Prevention, “Opioid Overdose - Understanding the Epidemic,” Centers for Disease Control and Prevention, August 31, 2017, https://www.cdc.gov/drugoverdose/epidemic/index.html.

[2] “Former DOJ Litigator Jonathan Novak Joins Dallas Law Firm Fears Nachawati; Attorney Brings Significant Opioid Expertise to Mass Tort Litigation,” PR Newswire, Oct. 29, 2018, accessed November 22, 2018, https://advance-lexis-com.ezp-prod1.hul.harvard.edu/document/?pdmfid=1516831&crid=a2a540bd-ac72-4d94-8625-0abbfa79cd03&pddocfullpath=%2Fshared%2Fdocument%2Fnews%2Furn%3AcontentItem%3A5TM0-6VV1-JB72-13VP-00000-00&pddocid=urn%3AcontentItem%3A5TM0-6VV1-JB72-13VP-00000-00&pdcontentcomponentid=8054&pdteaserkey=sr6&pditab=allpods&ecomp=5ynk&earg=sr6&prid=0068ab81-76a5-4148-b304-f5c1cc700cca.

[3] Curtis Weyant, "Opioid Lawsuits," ConsumerSafety.org, accessed September 25, 2018, https://www.consumersafety.org/legal/opioid-lawsuits/.

[4] Mike Moore, Phone Interview, January 30, 2019.

[5] Ibid.

[6] Allan M. Brandt, The Cigarette Century: The Rise, Fall, and Deadly Persistence of the Product That Defined America, New York: Perseus, 2007.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Richard C. Ausness, Public Tort Litigation: Public Benefit or Public Nuisance, 77 Temp. L. Review 2004, HeinOnline, pp. 826-827, https://uknowledge.uky.edu/cgi/viewcontent.cgi?article=1391&context=law_facpub.

[11] Ibid., p. 827.

[12] Ibid.

[13] See, among others, Regulation Through Litigation (Viscusi); “Reducing Harm Through Litigation Against Opioid Manufacturers? Lessons From the Tobacco Wars” (Carr, et al.); The Cigarette Century (Brandt)

[14] Derek Carr, Corey S. Davis, and Lainie Rutkow, “Reducing Harm Through Litigation Against Opioid Manufacturers? Lessons From the Tobacco Wars, ” Public Health Reports Vol. 133, Issue 2, pp. 207-213, March 1, 2018, https://journals-sagepub-com.ezp-prod1.hul.harvard.edu/doi/abs/10.1177/0033354917751131.

[15] See, among others: Bruce Japsen, “Opioid Lawsuits Look More Like a Tobacco Settlement Every Day,” Forbes, 25 Aug., 2018, https://www.forbes.com/sites/brucejapsen/2018/08/25/opioid-lawsuits-looking-more-like-tobacco-settlements-every-day/#5ff737164f4f.

[16] (As of the beginning of 2019, that figure has surpassed 1,800 lawsuits and continues to climb rapidly.)

[17] Ibid.

[18] Abbe R. Gluck, Ashley Hall, Gregory Curfman, “Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis,” Journal of Law, Medicine, & Ethics, p. 8, July 17, 2018, https://doi.org/10.1177/1073110518782945.

[19] Curtis Weyant, “Opioid Lawsuits,” Consumer Safety, Accessed November 20, 2018, https://www.consumersafety.org/legal/opioid-lawsuits/.

[20] Ibid.

[21] Daniel Fisher, “Time Running Out for Lawyers Suing Opioid Industry to Show Specific Proof,” Forbes, October 19, 2018, https://www.forbes.com/sites/legalnewsline/2018/10/19/time-running-out-for-lawyers-suing-opioid-industry-to-show-specific-proof/#53d5546c2a86

[22] Abbe R. Gluck, Ashley Hall, Gregory Curfman, “Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis,” Journal of Law, Medicine, & Ethics, p. 15, July 17, 2018, https://doi.org/10.1177/1073110518782945.

[23] 28 U.S. Code § 1407, accessed 26 Nov. 2018, https://www.law.cornell.edu/uscode/text/28/1407.

[24] Abbe R. Gluck, Ashley Hall, Gregory Curfman, “Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis,” Journal of Law, Medicine, & Ethics, p. 15, July 17, 2018, https://doi.org/10.1177/1073110518782945.

[25] Jan Hoffman, “Can This Judge Solve the Opioid Crisis?” The New York Times, March 5, 2018, https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html. 

[26] Abbe R. Gluck, Ashley Hall, Gregory Curfman, “Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis,” Journal of Law, Medicine, & Ethics, p. 3, July 17, 2018, https://doi.org/10.1177/1073110518782945.

[27] Jan Hoffman, “Can This Judge Solve the Opioid Crisis?” The New York Times, March 5, 2018, https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html. 

[28] United States District Court Northern District of Ohio Eastern Division, In Re: National Prescription Opiate Litigation, MDL No. 2804, “Transcript of Proceedings,” 9 January 2018, accessed 26 Nov. 2018, https://assets.documentcloud.org/documents/4345753/MDL-1-9-18.pdf. 

[29] Commonwealth of Massachusetts v. Purdue Pharma L.P., Purdue Pharma Inc., Richard Sackler, Theresa Sackler, Kathe Sackler, Jonathan Saclker, Mortimer D.A. Sackler, Beverly Sackler, David Sackler, Ilene Sackler Lefcourt, Peter Boer, Paulo Costa, Cecil Pickett, Ralph Snyderman, Judith Lewent, Craig Landau, John Stewart, Mark Timney, and Russell J. Gasdia, Suffolk Superior Court, C.A. No. 1884-cv-01808, p. 78, https://www.documentcloud.org/documents/5684879-Mass-AGO-Pre-Hearing-Memo-and-Exhibits.html.