CASEY SOARES—My friend Danny woke up Christmas morning to news that his neighbor died from an opioid overdose overnight. Although Danny found the news upsetting, he was not surprised; Danny lives in Taunton, Massachusetts, a city struggling with the opioid epidemic.
Every day, more than 100 people die from opioid overdose. Over the past twenty years, deaths caused from opioid overdose increased six-fold. These deaths occur from both prescription and illicit opioid use. More than twenty percent of people prescribed opioids misuse them, and four to six percent of that population will begin using heroin. Approximately eighty percent of heroin users previously misused prescription opioids. The healthcare and legal costs of rampant opioid misuse exceed $78 billion annually.
Opioid addiction and opium-related death began rising in the 1990s after pharmaceutical companies assured the medical community that opioids were not addictive, which led to the embrace of opioids in treatment. Unfortunately, it is now clear that the pharmaceutical companies, who profitably pushed their products, were wrong. Since the 1990s, pharmaceutical companies have used those profits to incentivize doctors to prescribe more opioids, with many doctors receiving six-figure salaries for speaking engagements and consulting services. The investment paid off, by 1999 prescriptions for opioids had skyrocketed.
Opioids have inflicted immense pain and suffering on millions of Americans, and the burden placed on society by this epidemic is profound. Recently, several states have filed class-action lawsuits against the pharmaceutical companies most associated with opioids (“Big Pharma”), like Purdue Pharma and Johnson & Johnson. The plaintiffs in each lawsuit blame Big Pharma for the opioid epidemic, claiming that Big Pharma knew the harmful effects of opioids and did nothing to intervene with the ensuing epidemic. This summer more than 600 cases against Big Pharma were directed to one federal judge in Ohio, who will handle all of the lawsuits.
The complaints filed against Big Pharma seek multiple forms of relief, alleging unjust enrichment, fraud, and ultimately collusion against Big Pharma. Between the hundreds of claims, billions of dollars in damages are being demanded. The first cases will be heard in March, but many believe these lawsuits will end in settlement.
Some Americans feel that litigation against Big Pharma is not worth the expense. While the government entities named in these cases will likely reach significant settlements with Big Pharma, it is not likely that this sum will be sufficient to address the immense healthcare costs and the societal burden caused by the opioid epidemic.
The lawsuits alleging Big Pharma’s involvement in the opioid epidemic echo litigation against Big Tobacco, where dozens of state lawsuits against Big Tobacco resulted in billion-dollar settlements. While litigation against Big Tobacco contributed to a decline in smoking, without curbing the deceptive practices of Big Tobacco, millions of Americans continue to smoke. Resultantly, lung cancer is still the second most common form of cancer.
Litigation failed to address some of the major societal concerns associated with smoking, which highlights a flaw in using litigation to resolve epidemic problems. The adversarial American legal system frames disputes as controversies between competing parties. This framework provides that there will be a perceived winner and loser in every dispute, even if it ends in settlement. However, when the issue in controversy is a nationwide epidemic purportedly perpetrated by regulated industries, litigation provides a limited remedy. For example, in tobacco litigation, the plaintiffs who settled their claims against Big Tobacco for billions of dollars were victors, but only those plaintiffs enjoyed the symbolic victory. Society continues to pay the cost for Big Tobacco’s profit.
Recent changes in federal prescribing laws aim to limit access to prescription opioids. Doctors must inquire about patients’ substance use history and may no longer easily prescribe opioids. This is a significant step in addressing opioid misuse, but it will not affect opioid addiction and illicit opioid use. Changing doctors’ practices and reducing the legal supply of opioids will not adequately impact rates of addiction, which drives illicit opioid use. Although these measures will limit new cases of addiction, they will not provide the costly treatment that millions of Americans require to undo the harm of long-term opioid use.
The opioid epidemic will only recede through a comprehensive approach to treating opioid addiction nationwide. Additionally, it is important that the government determine how Big Pharma contributed to the opioid epidemic and regulate related actions to protect against further damaging behavior. Opioid litigation may be effective if the collected money supports meaningful treatment; however, litigation will not change Big Pharma’s practices. If opioid litigation ends in settlement, Big Pharma may cost-effectively take the blame for its poor practices, but this will not ensure that the effects of Big Pharma’s behavior will be resolved. To prevent further societal harm, the government must restrict industry behavior that is proven to cause harm.
