Preparing for the Opioid Litigation Epidemic

According to almost every major media outlet, America is now in the midst of an opioid addiction crisis. People across the U.S. are developing dependencies, and even overdosing, on opioids: drugs like OxyContin, Hydrocodone, Fentanyl, Morphine and Heroin. On October 26, 2017, President Trump called it a national health emergency.

One of the newer symptoms of this so-called ​“Opioid Epidemic,” however, is a rash of litigation targeting pharmaceutical manufacturers and distributors. Currently, there are actions underway in Texas, West Virginia, Alabama, Ohio, Mississippi, South Carolina, Kentucky, Washington, Illinois, California, New York and more new suits are being filed.

In fact, it is believed that more than 2 million people abused opioids in 2016, costing the government more than $25 billion in health care costs allocated to addressing this addiction. But so much about the actual roots of the epidemic are just now being discovered.

The overarching assertion in these suits is that various pharmaceutical companies have downplayed the risks associated with chronic opioid use, including dependency, and exaggerated the effectiveness of their abuse-deterrent tools. At the same time, they are accused of overstating the benefits of opioids as a treatment for chronic pain, often using as a mouth-piece third-party scientists and researchers who manipulate targeted patients and doctors.

Current Litigation

The present actions largely allege common law tort and statutory claims, among them consumer and Medicaid fraud, public nuisance (criminal acts that threaten the welfare of the community), unjust enrichment (benefiting unfairly from another’s loss), false advertising, deceptive practices, corruption and civil conspiracy.
Some have likened this spate of lawsuits to the Big Tobacco cases of the mid-90’s. Other media outlets and public officials over-emphasize the similarities and ignore many of the vital distinctions between the current suits and the Big Tobacco cases.

Still, there is one over-arching factor that has proven critical to both opioid and tobacco litigation--the political nature of the claims. State Attorneys General and regulators are using their home forum to transform plaintiffs’ cases of questionable merits into formidable litigation. The presence of government players adds value, irrespective of the lawsuit’s objective merit. As such, the potential gravity of these lawsuits is hard to dismiss.

Litigation Strategies

Comparison to the tobacco litigation are, in fact, insupportable, but for the politics.

These hyperbolic claims ignore the reality that opioid related medicines aid millions of sufferers of chronic pain when properly prescribed.

In each of these claims, specific acts and specific harms attributable to actual elements of causation must be determined. This is difficult to do when the quality of the ostensible harm, the full diasporic spectrum of the ​“epidemic,” is so variable. Furthermore, there are a plethora of intervening actors between pharmaceutical companies and the community, any of whose independent behavior could supersede and break the causal chain required to hold opioid manufacturers liable. For example, doctors who negligently misprescribe or miscommunicate, and patients who misuse opioids electively, or as a result of other social forces, divert any legally constructed flow of responsibility connecting the manufacturers and their advertising to the conditions that created the health crisis.

Studies conducted by the University of Arkansas looking at the transition from acute to periodic opioid use seem to suggest that the most effective way of reducing the risk of abuse might be through doctors limiting initial prescriptions, leaving shorter periods of time between refills, and so preventing unnecessary accumulation of medication.

Keeping You Updated

In service to clients who may find themselves affected by this new legal trend, the lawyers at Kelley Drye & Warren LLP are analyzing the wide range of published research addressing the causes and effects of the ​“Opioid Epidemic,” with a view to anticipating and blunting some of the most spurious charges.

As the body of research grows, and the opioid litigations develop, we will publish regular advisories detailing precautionary steps that can be taken at the pre-litigation stage, in addition to considering how best to craft the most viable defenses. We have created a tracking chart classifying each legal development in this area which will be used to keep us, and you, up-to-date and to spot developing trends as they happen. 

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Bill Escobar
(212) 808-7771
wescobar@​kelleydrye.​com

Neil Merkl
(212) 808-7811
nmerkl@​kelleydrye.​com

Cliff Katz
(212) 808-7609
ckatz@​kelleydrye.​com