One year ago a multidistrict litigation site (MDL 2804) was chosen as the venue for cities, counties, and states to bring civil actions against the makers of opioids. As I wrote about then, the opioid crisis has created huge burdens on states and municipalities. State and local governments have shouldered much of the cost of caring for individuals addicted to opioids. The federal government estimated that, in 2015 alone, 12.5 million people misused prescription opioids, and 33,000 people died from opioid overdose. In 2013, opioid abuse resulted in over $78.5 billion in economic losses. Cities, counties, and states have picked up much of that staggering cost. These government entities in MDL 2804 are fighting back, and many have filed lawsuits against the makers of opioids to recoup the billions of dollars lost in this ongoing crisis.

And while MDL 2804 is critically important, and overdue, other groups of opioid victims do not necessarily “fit” within the concept of an MDL focused on government plaintiffs. Among other victims, huge numbers of infants have been born addicted to opioids. Starting life this way creates layers of physical, mental, and emotional challenges. These children are the ultimate “innocent victims,” and they deserve an MDL court dedicated to ensuring a fair and full opportunity to seek compensation for their injuries.

Opioid-Addicted Infants Present Unique Claims

Last week, a team of lawyers asked the federal judicial panel (JPML) to create a new MDL related to the opioid epidemic, in this instance focused on infants and children who are born addicted to opioids. In their motion before the JPML, the attorneys argued that infants and children present “unique claims” than the lawsuits filed by cities and states in MDL 2804. As such a separate MDL is appropriate.

One primary issue facing these newborns addicted to opioids is Neonatal Abstinence Syndrome (NAS), which is a group of conditions affecting an infant born to a mother who was a frequent user of opioids while pregnant. Opioids can pass through the placenta and severely injure the fetus in utero. Once the baby is born, he or she will suffer the effects of opioid withdrawal. Symptoms for newborns with NAS include body shakes, seizures, crying, poor feeding, breathing problems, fever, diarrhea. Needless to say it is a brutal way to start out in life. NAS can cause intellectual, physical, developmental problems for the child. The motion noted that “these innocent young victims risk losing the opportunity to achieve a productive adulthood.

These cases involving children would require extensive discovery in the following areas:

• studies showing the effects of opioids on pregnant mothers and children in utero;
• the effects of methadone use by mothers on their children in utero;
• studies examining which medications are safe for pregnant mothers who are addicted to opioids;
• discovery relevant to the plaintiffs’ product liability claims.

Heartbreaking Opioid Abuse Statistics

The motion set out heartbreaking statistics related to opioid addiction:

In West Virginia in 2017, 50.6 cases of Neonatal Abstinence Syndrome were identified in newborns for every 1,000 live births (5.06% of all children born in West Virginia).

One West Virginia county had 106.6 cases of NAS per 1,000 live births.

Between 2008 and 2012, 780 million hydrocodone or oxycodone pills were prescribed in West Virginia, a state of 1.8 million people. That’s 433 pills for every citizen in West Virginia over that five year period.

In the town of Williamson, West Virginia, population 2,900, 20.8 million opioid pills were shipped between 2006 and 2016. Or 7,172 pills per resident.

Plaintiffs Seek West Virginia MDL

As West Virginia is one of the hardest hits states for opioid addiction, the attorneys representing opioid-addicted newborns have asked the JPML to create the new MDL in the Southern District of West Virginia. If West Virginia is not selected, the plaintiffs’ team asked the JPML to place the MDL in the Southern District of Illinois.

A decision should come soon, and I will keep you posted.

The opioid epidemic in America is a national crisis. The U.S. Centers for Disease Control recently reported that more than 64,000 people died in 2016 from drug overdoses, with the great majority of those deaths caused by opioids. The numbers for 2017 only look worse.

Last month, I wrote about whether people affected by the opioid epidemic can sue the drug manufacturers and distributors, doctors, pharmacies, and other suppliers who contributed to the addiction that destroyed their lives. But what can victims recover in lawsuits involving dangerously addictive prescription drugs?

You know all too well what you have lost—your financial security, your health, or perhaps even a loved one’s life. Now, let’s review the legal terms we use to discuss these losses.

Defining Damages

Losses that a person seeks to recover in a lawsuit are known as damages. Damages are, in short, the financial reward that a successful litigant wins at the end of a case. Damages are generally divided into two broad categories: compensatory, or actual, damages and punitive damages.

Compensatory damages seek to restore what injured people or their survivors lost in terms of money. These damages are awarded to compensate someone for an injury. They are calculated by considering what a person lost because of someone else’s wrongdoing. Typical compensatory damages include lost income and medical expenses.

Not all compensatory damages are measurable, however. Economic damages—like hospital bills—have an exact, provable dollar amount. Noneconomic damages attempt to put a dollar value on pain and suffering or on the loss of a loved one’s companionship. They’re harder to measure and prove but often are worth more than economic damages.

Punitive damages, on the other hand, aren’t about paying back what a victim has lost—they’re about punishing the responsible party for doing something wrong and discouraging others from behaving in the same way. Punitive damages tend to be significantly greater than compensatory damages, but they aren’t available in every case.

As an example, remember the case against McDonald’s when a woman was scalded by excessively hot coffee? The jury in her case decided that she should receive $160,000 in compensatory damages, including her medical expenses, and another $2.7 million for punitive damages to prevent McDonald’s and others from serving dangerously hot beverages.

The McDonald’s case points out another critical reality about damages: just because a jury awards you damages doesn’t mean that the judge will (or can, in some cases) impose that full amount. The plaintiff in that case was ultimately awarded only $640,000 by the court and ended up settling for even less to avoid an appeal.

Damages in an Opioid Addiction Case

What do these definitions and terms mean for you? For an opioid addiction case, the actual damages suffered by addicts or their loved ones could include:

• lost income from missing work, losing a job, or losing the ability to work due to disability;
• medical costs, whether from a medical emergency (such as an overdose) or from long-term health problems caused by opioid abuse;
• drug treatment costs to overcome an addiction; and
• pain and suffering related to opiate addiction and the damage it does to relationships and lives.

Bear in mind that you will have to justify any damages you seek and explain how they are related to the addiction to opioids. This means both documenting any financial losses and connecting the responsible party’s actions—whether that’s the manufacturer who failed to properly warn about a drug’s addictive qualities or the doctor who prescribed you too many pills and enabled your addiction—to the damages you seek.

What Should You Do Now?

If you or a loved one has become addicted to opiates after receiving a prescription, there are a few things you should do today.

First, if you or your loved one is still actively addicted, get help. Nothing is likely to get better until the addiction is under control—and no amount of money will fix that.

Second, start to make notes about the losses you’ve suffered because of opiate addiction. Keep track of these and add to them as you think of additional types of damages or as more damages occur. It’s better to err on the side of including too much information or reaching too far than it is to leave something out and forget about it. While you’re making your list, consider what you would need to document those losses: collect paystubs, hospital bills, and treatment center receipts in one place.

Third, consider contacting a lawyer. This isn’t the type of case that people can handle on their own. Product liability and medical malpractice cases are complex and challenging, and your opponents have a host of lawyers to defend them.

Have you been directly affected by the opioid epidemic in America? Millions of people have become addicted to these powerful drugs—and for many, that addiction started with a legally prescribed medication to treat legitimate pain. One report estimated that more than 59,000 people died from drug overdoses in 2016—and most of those were caused by opioids. The President has even declared opioid abuse a national public health emergency.

I’ve written before in this space about the opioid epidemic and the massive opioid litigation gearing up across America as well as the establishment of centralized multidistrict litigation. So far, these cases primarily involve state and local governments suing opioid manufacturers and distributors for their roles in the opioid crisis.

No doubt governments have suffered financial losses from the skyrocketing number of overdoses requiring emergency treatment. In North Carolina alone, the cost of opioid-related accidental overdose deaths was estimated at $1.3 billion in 2015.

But if you’re a victim of the opioid epidemic—either through your own addiction or that of a loved one—you may be wondering whether you’ll ever see any benefit from these government lawsuits or whether you can sue directly. After all, the government’s losses are secondary, while you may have lost your job, home, relationships, or loved one.

Will these government lawsuits affect your ability to file your own case? The answer depends both on who might be responsible for the harm and how you could hold them accountable.

Who’s Responsible?

The government cases have focused on drug manufacturers and distributors. They allege that these businesses overzealously marketed opiates for pain treatment, misrepresenting their risks and benefits.

Other lawsuits have gone after doctors, arguing that they negligently prescribed addictive drugs without fully explaining the risks. It’s easy to see why doctors are targets: The Centers for Disease Control and Prevention (CDC) reported that “In 2015, the amount of opioids prescribed was enough for every American to be medicated around the clock for 3 weeks.”

With that kind of rampant overproduction and overuse, and drugs that prove addictive to as many as one person in every four who receives an opioid prescription, this epidemic might have been unavoidable.

How Are These Drug Suppliers Responsible?

In product liability cases, there are three general ways to hold a manufacturer or seller responsible for the injuries to someone who is hurt using a product. That product might have:

• A defective (and dangerous) design. Think of tobacco, for example—if used as intended, it causes serious negative health effects.
• A manufacturing defect. A product that is otherwise safe might have been produced in a way that made it unsafe. For example, if a batch of ice cream is accidentally contaminated with salmonella as it is mixed, that is a manufacturing defect.
• A defect in warnings. A product might be unsafe in certain predictable situations, yet the manufacturer or distributor failed to warn customers about those risks. If a toxic household cleaner didn’t advise users to wear gloves that could qualify as a failure to warn.

The most likely avenue for opioid litigation by individuals is the third, a failure to warn patients of the risks of addiction. But one of the problems with opioid litigation is that each potentially responsible party can blame someone else. Manufacturers and distributors point the finger at doctors who over-prescribed drugs, while doctors argue that they didn’t understand the risks either, given the heavy promotion from pharmaceutical companies.

As an individual, this finger-pointing is especially problematic, because there will always be a finger pointing back at you.

Misuse of Narcotics

In most product liability cases, people are injured using a product in the way it was designed to be used. This is how the tobacco litigation unfolded: people were injured because they were smoking cigarettes, not because they were misusing cigarettes.

Unfortunately, the fallout from opioid abuse generally comes from off-label use, where people start using more of the medication than they were supposed to. Many people become so desperately addicted that they resort to street drugs like heroin to satisfy their physical cravings.

Manufacturers, distributors, and doctors can all argue that the addict is responsible for the destructive effects of opioids. If the patient had stuck to the prescribed dose, none of this would have happened! Governments avoid this problem, because they had no role in that off-label use.

But is it really your fault if you became addicted to opioids? If you’re like most people prescribed these potentially addictive narcotics, you weren’t an addict before you got that prescription. Addiction is a disease; the negative or even illegal behavior that follows is arguably caused by the addiction itself. When the addiction was a foreseeable consequence of the original prescription, are you solely responsible for that conduct?

That’s the question we’re interested in examining. At least some courts are trying to make sure that the government lawsuits don’t impede the right of affected people to sue individually. Expect to see more here about opioid litigation—both government and individual—in the future.

Over the past few years, an opioid epidemic has caused horrific problems for many regions of the country. In 2015 alone, the US Department of Health and Human Services estimated that 12.5 million people misused prescription opioids, causing over 33,000 overdose deaths. In 2013, the opioid epidemic resulted in $78.5 billion in economic losses. In response to this tragic loss of life and the economic strain placed on many state and local governments, several lawsuits have begun.

What Exactly Are Opioids?

Opioids are synthetic or semi-synthetic forms of opiates (like morphine). Opiates are derived directly from the poppy plant while opioids are manufactured chemicals that are very similar to opiates.

Opioids are used as painkillers and prescribed to patients to treat a variety of medical conditions where moderate to severe pain is a concern. Commonly prescribed opioids include:

• Oxycodone (OxyContin)
• Hydrocodone (Vicodin)
• Fentanyl

Opioids are effective at relieving pain, but unfortunately, they are extremely addictive and often lead to overdoses and the use of stronger (and more dangerous) illicit drugs. The causes of the opioid epidemic are complex, but one approach to combating it is to seek relief in the courts by going directly after the opioid makers.

The Basis for Opioid Lawsuits

Both individuals and local governments have sued the pharmaceutical companies under a variety of legal theories, although they are often based on the idea that the makers of opioids downplayed the risks of opioids while exaggerating their benefits.

These lawsuits are in new legal territory, but parallel some of the earlier lawsuits where states sued Big Tobacco and firearms manufacturers for the number of deaths and the financial toll their products were taking on the general population and state budgets.

If the opioid lawsuits have the same ending as the lawsuits against cigarette companies, states and municipalities may be able to help pay for fighting and treating the opioid crisis. For example, when the lawsuit against Big Tobacco settled, it resulted in the largest civil settlement in history, amounting to tens of billions of dollars. Continued payments are made by cigarette companies forever to help states treat their sick citizens suffering from tobacco-related illness and disease.

However, the opioid lawsuits face potential challenges that may not guarantee victory. For example, the opioid crisis has many causes, not just the pharmaceutical companies allegedly marketing their opioid products incorrectly.

For example, opioid abuse is the result of doctors who are overprescribing opioids and (questionable) scientific studies incorrectly concluding opioids were non-addictive. In addition, many of the abused opioids are obtained illegally by users and prescription medication distributors often don’t halt suspicious orders for opioids. Despite these challenges, there have been early successes in the opioid litigation.

For example, in 2004, the state of West Virginia settled its lawsuit against Purdue Pharma, the makers of OxyContin, for $10 million. And in 2007, Purdue Pharma agreed to pay $130 million for future civil lawsuit settlements brought by private parties, such as patients who were prescribed OxyContin.

Current Status of Opioid Lawsuits

Recently, many of the opioid lawsuits have been brought by government plaintiffs, such as states, counties and cities. Several of these plaintiffs include:

• The state of Ohio
• Cherokee Nation
• The city of Everett, Washington
• Santa Clara and Orange counties in California
• Orange, Nassau, Broome, Erie and Suffolk counties in New York
• The city of Chicago, Illinois

Most of these lawsuits have been brought within the past few months, so we need more time to see the direction they will take. Regardless of the outcome of these cases, the mounting pressures from the opioid crisis is starting to make a difference in other ways.

For example, in June 2017, the U.S. Food and Drug Administration (FDA) asked Endo Pharmaceuticals to voluntarily pull one of its opioids, Opana ER (oxymorphone hydrochloride) from the market. The FDA made this recommendation on the basis that Opana ER was being abused in ways where the benefits from having the drug available in the market were outweighed by its risks. For example, Opana ER was being manipulated so that it could be injected. Besides the obvious addiction and overdose risks, this new method of abusing the drug created outbreaks of diseases, such as HIV and hepatitis C.

I suspect opioid lawsuits will increase dramatically over the next few years. With opioid litigation having only just begun, stay tuned to this blog for any additional updates.