January 25, 2018 Articles

Legal Strategies Unfold as Opioid Lawsuits Rise

By Patrick J. McGrath

The legal profession is experiencing a feeling of déjà vu with the growing number of lawsuits related to prescription opioid abuse. With the lessons of Big Tobacco echoing in their minds, attorneys for pharmaceutical companies are developing their legal strategies as the opioid lawsuits mount.

An increasing number of states, cities and other government agencies have filed lawsuits against pharmaceutical companies, claiming they share responsibility for the opioid epidemic. The suits cite rising government agency spending on healthcare, addiction treatment, criminal justice, and other costs related to opioid abuse.

The legal strategy is reminiscent of the historic settlement with Big Tobacco, in which 46 states forced tobacco companies to pay certain public healthcare costs for patients with smoking-related illnesses. See Erika Fry, Big Pharma is Getting Hit with a Huge Wave of Opioid Suits, Fortune, Sept. 27, 2017. Given the impact of the Big Tobacco case, pharmaceutical companies will likely need to integrate a range of strategies to effectively advance key points.

For example, pharmaceutical companies may advance arguments that they are shielded from states’ lawsuits by the Supremacy Clause of the U.S. Constitution, which mandates that federal law preempts state law. Pharmaceutical companies go through long trials to get drugs approved by the FDA, and could argue that a federal agency’s approval for opioids protects them from state or local government legal action.

Additionally, the opioid crisis has prompted physicians to seek alternative therapies. But comprehensive research to prove the effectiveness of other prescription drug classes, over-the-counter options (e.g. Advil, Tylenol), acupuncture, massage, aqua therapy, medicinal marijuana, or other pain-reducing methods is limited. A broad-based comparative analysis of efficacy, cost, and risks may demonstrate the relative benefits of opioids to improve patient outcomes and reduce suffering.   

Opioid defendant companies also may seek to differentiate general demographic and market factors driving the increased demand, including the aging U.S. population, increased diagnosis of conditions requiring on-going pain management, significant rise in orthopedic procedures (e.g. hip and knee replacements, spinal repair, rotator cuff surgeries, etc.), and other similar medical treatments.

As these and other defense strategies are being formulated, the number of lawsuits keeps growing. Attorneys general in 41 states have formed a coalition to investigate manufacturers and distributors of opioids, which over the past two decades have led to a rise in the number of additions and overdoses. See Nadia Kounang, 41 state attorneys general subpoena opioid manufacturers, CNN, Sept. 20, 2017.

Lawsuits have been filed in more than two dozen states against manufacturers, distributors, pharmacies, insurers and healthcare providers, as state attorneys general seek to shift the liability onto deep-pocketed players on the opioid supply chain. See, Michael Nedelman, Doctors increasingly face charges for patient overdoses, CNN, July 31, 2017.

Even President Donald Trump has weighed in, calling the opioid epidemic the “worse public health crisis in American history.” The national spotlight may add momentum to the rise in litigation, increasing the chances that the situation could rival the landmark legal battle against Big Tobacco.

Copyright © 2018, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).