2018 has seen a spike in opioid-linked lawsuits in American history. The filings have been against pharmaceutical companies and their leaders as well as retail pharmacies. What makes 2018 unique, besides the number of lawsuits, are few of the lawsuits were brought by opioid victims or their families. The suits, filed by cities, counties, state attorneys and even American Indian tribal councils, may take years to find resolution.
While the federal Justice Department has joined a variety of states in their suits, Attorney General Sessions is preparing to file a separate federal suit targeting drug companies. While the federal authorities are getting involved, the state-level suits are the most interesting. They stand to reach the plateau of being the largest civil litigation settlement in American history. The approaches and ideas behind the suits are not new though. They are coming directly out of Big Tobacco’s playbook.
Tobacco was another public health emergency the country faced in the 1990s. Six jurisdictions and forty-six states took part in the biggest civil litigation settlement in the nation’s history when they settled with the tobacco industry. That agreement set out the annual payments to be made by each manufacturer and set new standards and restrictions for tobacco companies. The agreement also outlined the limitation on states. They could not file future claims against tobacco companies included in the original lawsuits.
What is making the situation significant now? There are better health records paper trails and, in theory, a priority in the pecking order for states receiving money. Experts estimate that tens of millions of dollars were spent by drug makers to downplay any concern about addiction, market exaggerations and physician lobbying to prescribe more. With the proximity to big tobacco’s strategy, the arguments of false advertising have a good chance of being heard when they go to court.
Others argue the distributors such as CVS, Walmart, and Walgreens, are to blame and they actively misled and harmed consumers. Pointing to examples of entire states, such as West Virginia, the anti-suit crowd is quick to point out that only certain states are required to monitor the supply chain.
The Cherokee Nation filed a suit in Tribal Court against the distributors. Mentioned in the filing was the big-box suppliers’ role in the widespread harm prescription drugs were causing on their tribe. When a federal judge in Oklahoma rejected their lawsuit, the Cherokee Nation is now suing Purdue Pharma for its role. The numbers shown in the cases are alarming and the ultimate goal is to combine the Cherokee Nation’s suit with others in hopes of achieving a collective outcome.
If the Big Tobacco model is followed, it could be months or years before a settlement is reached in the opioid courtroom wars.