The Opioid Epidemic

• For several years, pharmaceutical manufacturers and distributors pushed opioid-based medications, causing widespread misuse and addiction, killing tens of thousands and devastating entire communities, particularly in economically distressed, rural parts of the United States.
• Poor regulatory oversight of opioid marketing practices and inadequate responses from agencies charged with addressing illicit drug use helped enable the epidemic.
• Individuals and state and local governments bearing the costs of the epidemic have brought class action suits against opioid manufacturers, distributors, and corrupt doctors. Much like the Master Settlement Agreement against the tobacco industry in the 1990s, this litigation has the potential to compensate these victims, hold responsible companies accountable, and institute measures that might prevent future drug epidemics.

Beginning in the late 1990s, at the apparent instigation of the pharmaceutical manufacturing and distribution industries, U.S. doctors drastically increased prescriptions of opioid-based drugs to patients. According to a 2016 U.S. Surgeon General’s report, doctors across the United States had written more than 289 million opioid prescriptions every year between 2007 and 2012.[i] This rampant over-prescription of opioids fueled a massive addiction crisis that continues to tear families apart and devastate entire communities. Among the hardest hit are rural and Rust Belt communities in Appalachia, the South, and the Midwest – areas that were already suffering the destabilizing consequences of severe economic distress and dislocation.

Abuse of prescription opioids is now widespread, and addiction rates and fatal overdoses have soared to catastrophic levels. By some estimates, nearly 12 million Americans – or roughly 1 in 27 of the U.S. population – abused prescription opioids in 2016.[ii] More than 2 million Americans are thought to suffer from an opioid-use disorder.[iii] By 2016, the number of fatal opioid overdoses reached more than 42,000, helping to make fatal drug overdoses the leading cause of accidental death among Americans under the age of 50.[iv] Fatal opioid overdoses have become so prevalent that they have contributed to a decrease in U.S. life expectancy.[v] In 2015, the White House Council of Economic Advisors pegged the annual cost to the economy of the opioid epidemic at more than $500 billion.[vi]

Feeding this epidemic has become a massive business. Each year, the prescription opioid industry – including manufacturers, distributors, and retailers – brings in about $13 billion.[vii]

Even as this crisis has grown ever more unmanageable, the response of federal policymakers has been woefully inadequate. The first efforts to limit over-prescription of opioids turned out to be too little too late, as many of those who were already addicted simply turned to black market sources of prescription opioids, such as “pill mills,” or illicit forms of opioids, such as heroin or illegally produced fentanyl.[viii] Only in 2016 did federal lawmakers finally begin to tackle the critical issue of opioid addiction with the enactment of the 21st Century Cures Act, which included nearly $1 billion in grants to states over two years to provide access to addiction treatment services.[ix] Many public health experts agree that these grants fall well short of the tens of billions of dollars that will be needed to fight the opioid epidemic.[x]

Our civil courts offer an avenue for filling this policy void, as government officials and ordinary citizens have brought lawsuits against drug manufacturers, distributors, and corrupt physicians for their role in causing the opioid epidemic. Several states, cities, and counties have filed lawsuits, following a strategy similar to that of the litigation brought against major tobacco companies in the 1990s.[xi] Beyond providing hundreds of billions of dollars to compensate states for tobacco-related health care and other costs, the Master Settlement Agreement also funded educational programs aimed at preventing youth smoking and instituted significant policy changes, including advertising restrictions that sought to limit tobacco companies’ ability to target their products at minors.[xii]

Among other things, the opioid suits claim that pharmaceutical companies deceptively marketed their opioid-based products to doctors and the public, failing to disclose the full risk of addiction those products posed. They also claim that the distributors failed to recognize that the massive flow of opioids moving through their supply chains were going to improper uses and that they should have taken appropriate measures to stem the tide of these drugs.[xiii]

In December 2017, a federal district court in Cleveland, Ohio, consolidated nearly 250 different pending federal lawsuits arising from the opioid epidemic. The presiding judge has since embarked on an ambitious effort to bring together all relevant parties to hammer out a global settlement that would resolve all claims against the opioid industry.[xiv] In February 2018, Attorney General Jeff Sessions filed a statement of interest on behalf of the Department of Justice expressing support for the settlement effort.[xv] Meanwhile, several states have pursued separate litigation, which remain pending in state courts.[xvi]

These lawsuits illustrate many of the key themes at the heart of the relationship between civil justice and a fair economy. First, they spring from the reckless actions of several large pharmaceutical companies that promoted the overuse of opioids despite the known dangers they posed. Second, several regulatory failures contributed to the opioid crisis, including inadequate oversight of opioid marketing practices and the slow and inadequate policy responses from Congress and relevant agencies, such as the Drug Enforcement Agency and the White House Office of National Drug Control Policy, to contain the crisis while its earliest stages were unfolding.

Third, the lawsuits, if successful, could help promote a fairer economy by providing compensation for victims and by holding the drug companies accountable for the opioid crisis they helped fuel. As with the tobacco settlement, a settlement with opioid manufacturers could result in compensation for state and local governments for the significant public resources they have expended trying to address the opioid addictions suffered by so many, including health care costs and other social programs.[xvii] With this compensation, states and localities can direct more support toward effective addiction treatment programs, helping victims regain an opportunity to improve their health and their ability to earn a living.

Moreover, a settlement can be designed to avert future addiction epidemics. Funds could be directed to a youth education program designed to warn children and young adults about the dangers associated with opioid-based medication. The settlement could also be used to place restrictions on how opioids are marketed to doctors and the general public, which could help limit future instances of over-prescription.

This multifaceted pursuit of civil justice is a crucial step in solving the opioid crisis. Along with other policies, tort law can help restore economic strength and opportunity to those struggling with the effects of opioid abuse. Other government “safety net” or economic development programs provide important assistance to devastated communities and individuals, but lawyers and their clients pursuing civil justice can go further to hold irresponsible corporations accountable for the damage caused by the opioid crisis.

Select ChapterEntire Report (PDF)Executive SummaryIntroductionFour Case StudiesThe Opioid EpidemicIndustrialized Hog Farm NuisanceWells Fargo Fake Account ScandalFenceline Communities After Hurricane HarveyPromoting a Fair Economy Through Civil JusticeThe Ongoing Assault on Civil JusticeA Better Path ForwardConclusionEntire Report (PDF)