Who’s Actually Behind the Prescription Opioid Litigation?

You might’ve heard all the buzz about the lawsuits seeking to hold Big Pharma accountable for the national opioid epidemic, which is linked to staggering addiction rates and overdose fatalities. Of the significant number of cases filed, 1,663 of them have so far been consolidated into a multidistrict litigation (MDL) to be handled by a single judge. With the lawsuits focusing on the health crisis, it’s easy to assume that people who took the drugs are behind the cases; however, you’d be surprised to find that less than one percent of plaintiffs are individuals. So, who’s filing these lawsuits and what do they want?

Who are the plaintiffs?

Most lawsuits included in the MDL were filed by states, cities, counties, state attorneys general and Native American tribal councils rather than epidemic victims themselves. When we asked Paul Hanley of Simmons Hanly Conroy for the exact number of patient and individual plaintiffs involved in the litigation, his answer was startling.

“Less than one percent,” said Hanly, who’s one of the three attorneys serving as lead counsel for the plaintiffs.  “Could even be zero, but I’m not totally certain of that.”

So, what’s the reason for this? Hanly explained:

Individual cases are extremely expensive to litigate and difficult to prove because of the potential for confounding causation factors such as prior drug use, genetic predisposition and the like. City and county cases, on the other hand, present fewer individualized factors and ‘blame the victim’ is not a viable defense for defendants.”

The plaintiffs argue that they suffered economic losses while trying to control opioid use in their communities, including sometimes being forced to divert funds away from other public services and toward the prescription drug crisis. More specifically, the entities say they were required to train emergency responders in proper overdose treatment, provide healthcare and rehabilitation services to victims of the epidemic, and grow law enforcement staff, among other financial burdens.

Who’s being sued and why?

The lawsuits name numerous pharmaceutical manufacturers, distributors and individual physicians as defendants and claim they meticulously orchestrated the epidemic, in part by downplaying the risks of long-term opioid use, overprescribing the drugs, and negligently handling suspicious bulk orders. In short, the cases allege the defendants fueled the crisis by using deceptive marketing tactics and irresponsible distribution practices in order to make lots (and lots) of money.

How will the lawsuits help affected individuals?

The damages claimed in the litigation, which is one of the largest MDLs in U.S. history, could amount to hundreds of billions of dollars. And although the money wouldn’t go directly into the pockets of victims, the lawsuits could provide local governments with more resources to prevent and reduce opioid use, as well as replenish the budgets of public services that took hits due to the crisis.

A press release issued by the plaintiffs’ counsel sums it up best: the goal of the MDL is to provide devastated communities with “support and resources for the decades-long recovery that lies ahead.”

Understanding the opioid crisis

In a December 2018 court order, U.S. District Judge Dan Polster, who is overseeing the MDL, described the opioid epidemic as a “man-made plague, twenty years in the making.”

The crisis can be traced back to the 1990s, when the introduction of OxyContin and subsequent surge in prescriptions triggered a spike in opioid overdose fatalities. Opioid makers allegedly misled the public in their marketing efforts with regard to how addictive the drugs could be and sought to influence how doctors treated pain by providing them with financial incentives to prescribe their drugs.

For example, a memorandum filed by the Commonwealth of Massachusetts alleges that Purdue Pharma and the Sackler family—the makers of OxyContin—pursued relationships with Tufts University, Massachusetts General Hospital, and other schools and medical centers in the state by making significant donations and sending biased publications to generate favorable opinions of their drugs. Consequently, the filing says, the defendants gained prominent platforms in the medical community, including classrooms and medical journals, which they ultimately used to control the actions of key opinion leaders, doctors and the next generation of practitioners.

The memorandum goes on to claim the opioid makers deflected from their role in growing addiction rates and overdose deaths by stigmatizing victims and writing off addiction as a personal choice made by “reckless criminals,” which only made dealing with the crisis harder.

According to the CDC, an average of 130 people die every day from opioid overdose in America alone—more than 35 percent used drugs they were prescribed.

What happens now?

Judge Polster has reportedly pushed for a speedy timeline and shown a commitment to reaching a settlement. During the MDL’s first hearing in January 2018, Polster said he wasn’t interested in “finger-pointing” and “moving money around” in a long, drawn-out trial, but achieving a meaningful resolution that ultimately reduces the number of opioids being circulated. 

The case is scheduled to head to trial on October 21, 2019. The full pretrial schedule can be found here, and we’ll keep you posted with any updates.