I blogged previously about the United States opioid crisis and how many local and state governments were looking to the courts to help deal with it. Specifically, these governments have brought lawsuits against manufacturers and distributors of opioids.

When we last wrote about the opioid crisis, I explained how these lawsuits had only just begun. The following post is an update on how these lawsuits are progressing. But before we get to that, let’s discuss why opioids are generating these lawsuits.

The Legal Basis for Suing Opioid Manufacturers and Distributors

The opioid crisis imposes a heavy price on states and municipalities. This figure is in the billions of dollars for healthcare costs, law enforcement costs, lost economic productivity and increased strain on the legal system and social services. State and local governments are looking to make the companies that had a large part in the opioid epidemic help pay to deal with these problems.

State and local governments argue that opioid manufacturers and distributors engaged in the following illegal behavior in order to profit from the opioid crisis:

• Purposely ignored suspicious orders (these were unusually large orders for opioids that could not be for any legitimate medical purpose) for opioids and refused to detect, report and stop these suspicious orders as required by state and federal law.
• Distributing questionable medical literature that proclaimed opioids had very little risk for addiction.

State and local governments have then used the following legal theories to allege the opioid manufacturers and distributors are liable for the opioid epidemic:

• Misrepresentation
• Negligence
• Public nuisance
• Federal Racketeer Influenced and Corrupt Practices Act (also known as RICO)
• State corrupt practices laws
• State trade practices laws

However, because of the similarity in their legal arguments and the common factual basis for their legal claims, these governments have requested that the 66 or so opioid lawsuits currently in federal courts be consolidated and coordinated under one multidistrict litigation, or MDL.

What Is Multidistrict Litigation?

MDL is a special procedure in federal courts for streamlining similar lawsuits that are currently pending in many different districts. If the lawsuits involve at least one “common question of fact” and can be more efficiently and conveniently handled when consolidated, they are eligible for MDL.

If a group of cases is consolidated into an MDL, a single judge and court will decide pretrial issues, such as discovery disagreements. This judge will also try to foster a settlement among the parties. Assuming there is no settlement, the actual trial will be held in each case’s original court.

Why Create an Opioid MDL?

There are two important reasons for creating an MDL. First, handling all the pretrial issues with one judge creates consistent pretrial rulings. For example, let’s say the plaintiffs want a copy of a certain document during discovery. The defendant objects to producing the document. Without the MDL, a judge in one case might rule for the plaintiffs and order the production of the document while another judge in a different case could make the complete opposite decision. This can create confusion and inconsistent court decisions.

Second, the parties can save time and money by litigating their case in a single court that’s most convenient for the parties, especially the defendants.

How to Create an Opioid MDL

The local and state governments have requested an opioid MDL based on the following arguments:

First, the local and state governments contend that opioid manufacturers and distributors breached their duty to identify, stop and report suspicious opioid orders. This presents a common question of fact, one of the requirements for creating an MDL.

Second, creating an MDL would allow for a more efficient pretrial process. As of the time of the opioid MDL request, there were 66 federal lawsuits in 11 federal districts, spanning nine states. And any similar cases that are later filed can be sent to the MDL, further increasing the need for consolidation.

The local and state governments have suggested the Southern District of Ohio host the MDL due to its centralized geographic location and being home to offices or distribution centers for the major defendants.

JPML Establishes Opioid MDL

On September 29, 2017, the Judicial Panel on Multidistrict Litigation (JPML) granted the Plantiffs’ Motion for Transfer of Actions Pursuant to 28 U.S.C. § 1407 For Coordinated or Consolidated Pretrial Proceedings. The consolidated litigation will be named “National Prescription Opiate Litigation.” I will provide updates as this litigation progresses.

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.