Photo Credit: Shadrach Michaels, Treating WPC’s Opioid Addiction, Ely Times (Sept. 13, 2019), https://elynews.com/2019/09/13/treating-wpcs-opioid-addiction/.
By: Stephanie Smith
Senior Associate Editor, American Journal of Trial Advocacy
The opioid crisis is a national health crisis that has affected public health, as well as economic and social welfare. States, cities, municipalities, and Native American tribes across the United States are sounding the alarm on the opioid crisis as one of the worst medical catastrophes in the nation’s history. Moreover, the abundance of popping pills comes at a high cost. The National Survey on Drug and Health demonstrates that 92 million U.S. adults—about 38 percent of the entire population—were legally prescribed pain medications in 2015. This means that one of three people you know were prescribed opioids in 2015.
The opioids at issue come through both illegal and legal channels. As a class of painkillers, opioids include the illegal schedule 1 drug heroin under the Controlled Substances Act, but also includes those legitimately prescribed such as oxycodone (OxyContin), hydrocodone (Vicodin), codeine, morphine, and a drug 100 times stronger than morphine—fentanyl. Synthetic drugs are generally prescribed for pain after surgeries or health conditions like cancer. They interact with opioid receptors on nerve cells and the brain to block pain. The problem is compounded in that the pain medications create a sense of “euphoria,” so even if legally prescribed, they lend themselves to dependence. Users who attempt to stop taking them face severe withdrawals. This condition makes these drugs ripe for misuse.
Multidistrict Opioid Litigation
The devastated communities are left with one question: How do they overcome their drug problem? To fight back against the opioid crisis, states, counties, cities, and individuals have filed actions against makers and distributors for putting profit over patient protection. With pharmaceutical systems in place essentially to drug the nation, one must now look to the courts to determine how best to heal from the epidemic. Chicago filed the first suit in 2014. So many suits followed that the United States Judicial Panel on Multidistrict Litigation has consolidated these suits in the Northern District of Ohio.
The major player defendant parties involved include big time manufacturers, such as Purdue Pharma LP, Teva Pharmaceuticals USA Inc., Johnson & Johnson, Endo Pharmaceuticals Inc., Allergan Inc., and Mallinckrodt LLC. Claims allege that these companies should be on the hook for overstating benefits of the drugs while downplaying the risks. Defendant distributors such as Cardinal Health Inc., Amerisource Bergen Corp., McKesson Corp., as well as units of CVVS Health Corp., and Wal-Mart Stores Inc. are having to answer for failing to monitor and report suspicious drug orders.
The claims overlap, but they generally allege that drug companies have sung misleading praises about the effectiveness of these painkillers, while failing to inform on how addictive they are. These companies breached their duty to track the sale of dangerous drugs or enact preventative measures to keep the fever pitch at bay. This Ponzi-scheme led to the over-supply of opioid medication, rampant use of painkillers, and communities reeling in the aftermath.
A Hard Pill to Swallow
Pharmaceutical companies, faced with widespread litigation, are finding themselves swallowing threats of multi-million and possibly billion-dollar settlements, as communities seek to recover money to address costs of treating addiction. For example, in Oklahoma, Johnson&Johnson and its subsidiary Janssen Pharmaceuticals were found liable for proliferating the drug crisis throughout the state. The makers of OxyContin, Purdue Pharma, settled its case before going to trial at $270 million. Teva Pharmaceuticals has also settled for $85 million.
leery of trial or even larger settlement awards, some companies are
experimenting with enacting a global settlement through Purdue Pharma’s chapter
11 bankruptcy case. The idea is that the companies would establish
a public trust and donate money to opioid antidote and addiction treatment
If the global settlement is successful,
it would also require owners of Purdue Pharma, the Sackler family, to give up
their ownership in the corporation and pay $3 billion out of the family’s
pocket. In exchange, this settlement would be a
complete release from liability. The judge overseeing the multidistrict
litigation, Judge Polster, the Sackler family, as well as state attorney
generals and municipalities suing the company would have to be on-board for the
settlement to work. We have yet to see whether the global
settlement would dramatically shrink the opioid litigation and whether devastated
communities would receive the help they need to recover.
 Shadrach Micheals, Treating WPC’s Opioid Addiction, Ely Times (Sept. 13, 2019), https://elynews.com/2019/09/13/treating-wpcs-opioid-addiction/.
 Dennis Thompson, More than 1 in 3 Americans Prescribed Opioids in 2015, Dennis Thompson, CBS News (Aug. 1, 2017, 11:37 AM), https://www.cbsnews.com/news/more-than-one-third-americans-prescribed-opioids-in-2015/ (explaining Oxycontin and Percocet were the common painkillers legitimately prescribed for medical purposes, and nearly 12 million people misused them).
 21 U.S.C.A. § 812 (West 2019).
 Federal Drug Penalties, Ill. Wesleyan U., https://www.iwu.edu/counseling/Federal_Drug_Laws.htm (last visited Nov. 17. 2019).
 Nino C. Monea, Cities v. Big Pharma: Municipal Affirmative Litigation and the Opioid Crisis, 50 Urb. Law. 87, 111 (2019) (citing Sarah Holder, The Cities Suing Big Pharma over Opioids, CityLab (Oct. 11, 2017), https://www.citylab.com/life/2017/10/the-cities-suing-big-pharma-over-opioids/542484).
 Transfer Order, In re National Prescription Opiate Litigation, 1:17-md-02804 (Dec. 12, 2017), http://www.ohnd.uscourts.gov/sites/ohnd/files/2804TransferOrder.pdf.
 Opioids, supra note 6.
 Sarah Randazzo & Patrick Fitzgerald, Novel Plan Aims to Settle Opioid Suits, Wall St. J. (Sept. 30, 2019), https://www.wsj.com/articles/drugmakers-look-to-use-purdue-pharmas-bankruptcy-to-settle-opioid-suits-11569877871.