Wednesday, May 16, 2018

Opioid Crisis Results in Nationwide Settlement Efforts, But Will It Work?

The Department of Justice, 41 state attorneys general and hundreds of cities and municipalities have come together in one nationwide mass tort against the opioid crisis and the pharmaceutical industry. Now all those lawsuits are coming together in a nationwide settlement effort, but it may be hard to get everyone to see eye to eye on this important public health issue.

Government Entities Sue Big Pharma Over Opioid Crisis

From Macomb County, Michigan to the federal Department of Justice, public entities at every level have joined onto litigation designed to end the opioid crisis. The plaintiffs in the lawsuits involve 41 attorneys general and numerous local governments. The defendants: big pharmaceutical manufacturers and distributors. 

The governments are saying that Big Pharma made misrepresentations in their direct marketing and presentations to doctors, dentists, and pharmacists. By downplaying the addictive qualities of the drugs and aggressively pushing them to market, the pharmaceutical companies cost the country $504 billion every year. Of that amount, 25% falls on the public sector – state and city governments already strapped for cash. These plaintiffs say they have to fund:

  • Addiction services
  • Drug treatment courts
  • Inmate services
  • Medical examiner costs
  • Norcan and other antidotes to counteract opioid overdoses

They seek policy changes, as well as reimbursement for the high cost of these public services.
The earliest of these cases were filed in 2014, involving Chicago, Illinois and Orange County, and Santa Clara County, California. As plaintiffs added on to the mass tort, the many cases were consolidated into a single multi-district litigation and assigned to United States District Court Judge Dan Aaron Polster of the Northern District of Ohio. 

Opioid Crisis Lawsuits May Be the Most Complex Litigation in U.S. History

The opioid litigation isn’t the first time attorneys general and plaintiffs have come together to make nationwide changes. But commentators are saying that this lawsuit is different. Other pharmaceutical cases are based on faulty manufacturing or undisclosed side effects. With opioids, the drugs were working just as intended. The problem was that doctors and patients didn’t realize the devasting effects of opioid addiction at the time of prescription. 

One attorney in the Michigan lawsuit explained that the state has 1.2 opioid prescriptions for every man, woman, and child. Of those prescribed the drug at least 8 days, 13% were still taking opioids a year later. 

For parties nationwide, it isn’t just about the money. It’s about ending the epidemic. Jaime L. Dodge, director of the Institute for Complex Litigation and Mass Claims at the Emory University School of Law, told the Washington Post:

“At some level I think there’s a recognition that in some of these cases it’s not just a dollar or cents, it’s about fixing ongoing societal problems.”

Could Mass Tort Litigation Result in a Nationwide Settlement?

Judge Polster has been aggressively pushing the parties to resolve the case quickly. With approximately 150 people dying each day because of the drug, time is of the essence to achieve a nationwide settlement. 

But that may be harder than it sounds. Those present at the negotiations told Crain’s things aren’t going so well. Differences in opinions and priorities between state attorneys general and some local plaintiffs have caused settlement talks to stall. On Big Pharma’s side, initial statements that the industry was willing to negotiate seem to have cooled. Several manufacturers have indicated they may be willing to take their chances rather than paying billions of dollars to settle the claims. Elizabeth Burch, a University of Georgia law professor who teaches about complex litigation, told Crain’s Cleveland Business:

"If the idea was to come up with a quick settlement the companies could afford, time is slipping away and money that could go toward resolving the case is being eaten up by legal costs."

There is no such thing as an easy answer to a mass tort of this scale. Any potential settlement will likely include years of enforcement efforts as special masters dole out financial settlements and independent auditors monitor industry changes. But if settlement doesn’t happen, the litigation over the opioid crisis could span decades, and cost the U.S. thousands more deaths along the way.

Dani K. Liblang is a personal injury attorney at The Liblang Law Firm, PC, in Birmingham, Michigan. She handles mass tort actions against manufacturers. If you have been injured because of a company’s misrepresentations, contact The Liblang Law Firm, PC, for a free consultation.

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