Opioid Lawsuits: A Coming Wave of Litigation

Since 2015, 25 states, cities, and counties have filed civil lawsuits against opioid manufacturers and distributors in an attempt to combat what some are calling the worst drug epidemic in U.S. history. Additional states are interviewing law firms in an attempt to join the fight.

At the heart of the oncoming tidal wave of opioid litigation is an ever-rising number of individuals whose addictions to these medications far outstrip their medical need for pain relief – and the aggressive sales and marketing tactics that have made these powerful medications all too easy for people to obtain, use, and abuse.

Understanding the Crisis – and the Court Battles

Data from the Centers for Disease Control and Prevention (CDC) indicate that in 2015, 33,000 U.S. residents died as the result of opioid overdoses. These cases included overdoses of both illegal opioids, such as heroin, and opioids that can be obtained with a prescription, such as oxycodone and fentanyl. An increasing number of cases involve fatal doses of opioid “cocktails” that contain both street and prescription substances.

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In the 1990s, a number of public and private entities filed similar lawsuits against tobacco companies, resulting in verdicts against the companies that totaled more than $200 billion. The current tactic of using these lawsuits against opioid manufacturers and distributors has a similar goal: to hold companies that make and sell the drugs in question accountable for the public health costs of their products.

“If they’re not going to do it voluntarily, we’re going to drag them to the table and make them,” Ohio Attorney General Mike DeWine told the Washington Post. DeWine’s office has sued five drug manufacturers to date in relation to the opioid epidemic.

To date, the lawsuits have targeted opioid manufacturers and distributors, as well as pharmacy chains that fill opioid prescriptions. Popular defendants include manufacturers Allergan, Johnson & Johnson, Purdue Pharmaceuticals, and Teva; distributors Amerisource Bergen, Cardinal Health, and McKesson; and pharmacy chains CVS and Walgreens.

The lawsuits typically allege that manufacturers used aggressive sales tactics and downplayed risks in order to increase sales of the drugs and achieve higher revenues. Distributors and pharmacies often face claims that they failed to adequately track prescriptions and pill counts, resulting in large numbers of pills reaching “black market” dealers.

Many state and local governments, some of which have already spent millions of dollars on emergency medical services, law enforcement, and other resources to fight the opioid epidemic, are now seeking bids from law firms that total in the millions, the proceeds to come from any settlement obtained in the anticipated lawsuits.

Where the Experts Come In

As the rising tide of opioid lawsuits parallels the tobacco company lawsuits of the late 1990s, it’s reasonable to guess that the demands for expert witnesses in these cases will, in many ways, parallel those employed in tobacco cases.

First, experts will undoubtedly be employed by both sides to discuss the medical risks and effects of opioid use. These experts may include physicians, pharmacologists, and public health experts, both to discuss specific physiological factors of opioid use and the wider patterns that have contributed to the rise in opioid-related injuries and deaths being targeted as a public health crisis. Similarly, experts in pharmaceutical sales and distribution will undoubtedly be called upon to discuss the claims that manufacturers, distributors, and pharmacies were negligent in their aggressive marketing and lax tracking of the pills.

However, these categories of experts may be overshadowed by another group: historians. During the tobacco litigation of the 1990s, tobacco companies employed a number of expert medical historians to argue that in the latter half of the 20th century, “everyone knew” smoking carried health risks, and that therefore smokers had only themselves to blame for their injuries. Discussions of “common knowledge” and “scientific knowledge,” informed by these earlier cases and adapted to the specifics of the opioid situation, may take center stage as pharmaceutical companies seek to defend themselves against the rising tide of lawsuits.