On average, 130 Americans die every day from opioid overdose. With more than 500,000 opioid-related deaths recorded in the U.S. between 2000 and 2015, the crisis was officially declared a public health emergency by President Trump. Opioids are prescription narcotics with properties similar to those of opium and heroin. While opioids are used for pain relief and management, they also can create an addictive euphoric high in users.
With evidence that the pharmaceutical industry played a significant role in causing the opioid epidemic through the marketing of highly addictive prescription painkillers to treat common chronic pain conditions, state attorneys general, local governments and other public entities nationwide have led investigations and litigation to seek accountability and remedies.
The National Prescription Opiate Multidistrict Litigation (“Opioid MDL”) consolidates over 1,500 lawsuits filed by governmental entities, Indian tribes, medical providers, union benefit funds and others. The defendants are the pharmaceutical companies, distributors and retailers that made those prescription opioids available to the public. Common defendants include manufacturers such as Purdue, Actavis, Insys, Mallinckrodt, Teva, J&J, and Endo, as well as distributors and suppliers like Walgreens, Walmart, CVS, Rite-Aid, McKesson, Cardinal Health, and Amerisource Bergen.
Some estimates place the cost of the opioid epidemic to the public and private sector at $1 trillion dollars between 2011 and 2017. These costs include lost wages, loss of productivity, increased health care costs, loss of tax revenue, social service expenses, and criminal justice expenses.
The cost to individual addicts and their families are tragically difficult to quantify but include claims for physical injury, death, and emotional and mental anguish. The expert retained by plaintiffs in the Opioid MDL recently testified that the cost of abating the epidemic will be approximately $480 billion.
Bellwether trials are individual trials that are conducted by multidistrict litigation (MDL) transferee judges with the goal of producing reliable information about other cases centralized in that MDL proceeding. The bellwether trials for the Opioid MDL will be starting soon, with cases filed by two Ohio counties up first.
Summit County’s complaint stated that an average of 36.4 million opioid doses — 67 doses per resident — were dispensed in its borders annually from 2010 to 2016. Summit County alleges that opioid manufacturer defendants fraudulently trivialized the risk of addiction and encouraged doctors to respond to patients who showed signs of addiction by prescribing more opioids. The manufacturer defendants’ advertisements also claimed that long-term use of opioids improved pain management and quality of life, highlighted the dangers of high doses of NSAIDs such as ibuprofen, and suggested that opioids were significantly safer. Theories of liability against the defendants includes deceptive acts and practices, false advertising, public nuisance, fraud, unjust enrichment, RICO and negligence.
The Opioid MDL is overseen by U.S. District Judge Dan Aaron Polster. Judge Polster recently refused to entertain a gag order on plaintiffs’ attorneys that would have prevented them from publicly discussing the evidence in the case. While there are other protective orders in place in the MDL, it is likely that savvy plaintiffs’ attorneys will use the pleadings and evidence from the MDL as a template to pursue further litigation on behalf of entities and individuals that continue to be impacted by this tragic epidemic. Recognizing this possibility, defendants are pushing for settlement agreements that will insulate them from future litigation. For example, Purdue Pharma recently agreed to pay Oklahoma $270 million rather than face trial on charges of misleading marketing practices and misrepresentation regarding Oxycontin.
How many more of these lawsuits will be filed and the outcome of pending trials remain to be seen. What is clear is that the impact of the Opioid MDL will continue to reverberate nationwide.
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