The Current Climate in Opioid Litigation

In the 1990s, manufacturers unleashed a misleading marketing push underplaying the risks of opioid painkillers and exaggerating the drugs’ benefits.

This caused many patients becoming addicted to the drug, leading to many deaths occurring in the 1990s and early 2000s, causing 700,000 deaths related to prescription opioid overdose since 1999, and to this date, there is an estimated 130 deaths per day in America due to opioid addiction.

It comes of no surprise that there is a huge log of court cases to deal with the misleading, negligent and detrimental actions taken by manufacturers and their distributors. People are suing and demanding justice for those who were misled in this unfortunate epidemic, and this month, we had the opportunity to speak to a lawyer who has been working on such cases. Jeffery Reeves explains below on how the epidemic began, how it is progressing, and what can be done so we can avoid such an epidemic from reoccurring.

The death toll is staggering.  A big part of the solution here will be, as it has been with other gargantuan societal problems that escape the attention of regulators until lawyers get involved, is litigation.

Can you briefly underline how the opioid lawsuit epidemic began?

What I found fascinating when I first started researching the conduct that brought on the crisis, was that an unfortunate historical “accident” actually played a huge role in the explosion of opiate prescriptions.  In 1980, two researchers working with a collaborative drug surveillance program in Boston published an article.  The subject of their research wasn’t directly related to opioid use at all.  But the article that was eventually published in the New England Journal of Medicine came to an erroneous conclusion – something the authors have long since publicly admitted and disavowed – that “despite widespread use of narcotic drugs in hospitals, the development of addiction is rare…”

Then, in the 1990s the American Pain Society and the Veterans Administration, and other well-intentioned bodies, concluded that there was a wholesale failure in the medical community to adequately relieve pain in patients.  These groups – trying to be helpful – declared that pain should be treated by the medical community as the “5th Vital Sign.”

And that is what gave the opioid manufacturers their opening.  Their opioid drugs were already FDA-approved, but they were typically intended for severe pain, such as the type suffered at end of life in cancer patients.  Opioids were certainly never intended to be prescribed  for “every day pain”.  But, that’s how the manufacturers began selling them.  Most unfortunately, they leveraged that 1980 article from the Boston researchers as support for what they described as a “finding that therapeutic use of opiate[s] rarely results in addiction”, declaring that this was a fact had been widely publicized for decades.  They cited that 1980 Boston research paper over and over again, literally hundreds of times, as some sort of peer-reviewed “proof” that opioids were not addictive, or that the addictive properties were “overblown”.  The evidence suggests that they knew better, but those roots are a big part of the story.

Then there came black tar heroin and an avalanche of “pain clinics”, and Oxycontin prescriptions skyrocketed.  This part of the story is chronicled beautifully by Sam Quinones in Dream Land, The True Take of America’s Opiate Epidemic.

But to ensure justice in the near term, the parties need the courts to set these cases for trial.  The sooner the better.  It’s that simple.

In two decades, more than 400,000 people have died in the opioid crisis; how is this currently being handled in the legal industry?

You’re right.  The death toll is staggering.  A big part of the solution here will be, as it has been with other gargantuan societal problems that escape the attention of regulators until lawyers get involved, is litigation.

There are more than 2,500 cases that have now been filed in state and federal courts by attorneys across the country on behalf of states, counties, and cities that have seen their communities torn apart by human suffering, ever-climbing death tolls and the associated loss of productivity that death and addiction bring to a society.  These local governments have had their public safety budgets decimated by the need to direct public resources to opioid-related issues.

Just on the health and welfare side, for example, hospital and emergency room visits, specialty treatment costs, and of course, deaths, have skyrocketed.  And crime-related resources have been diverted for years to assisting victims of crime and funding the increased burdens on the criminal justice system.  And none of these financial losses even contemplates the enormous public nuisance that will take billions of dollars and perhaps a generation to abate.

This crush of cases is not only bringing justice to those local governments who have borne the financial weight of the crisis, but it is leading to much-needed oversight and legislation.

As someone who has fought for such cases, what do you think could be done to ensure justice is served and such a crisis does not reoccur?

As I mentioned above, legislation is going to be critical to preventing a similar crisis down the road.  But to ensure justice in the near term, the parties need the courts to set these cases for trial.  The sooner the better.  It’s that simple.

Another concern for our clients is keeping our cases in state court where we have filed them.

What challenges do these cases present? How do you work around them?

All litigation has its challenges.  Here one issue is simply the sheer volume of the parties involved.  In all of the cases my firm has filed, we have named upwards of 20 different defendants, including manufacturers, distributors, and sometimes pharmacies and prescribers.  Having this many parties involved obviously presents some case management and logistical challenges.

Another concern for our clients is keeping our cases in state court where we have filed them.  The counties and cities I represent very badly want to have their cases heard in local courthouses, where the judges and jurors understand the community and how it has been impacted.  The defendants, however, would strongly prefer to see the cases removed to federal court and consolidated in the multi-district litigation now pending in Cleveland, Ohio.  More than 2,200 cases are now sitting in the MDL in Ohio.  We want no part of the bureaucracy associated with that.  If the defendants can ship the cases to Ohio, then the cases may sit in purgatory there for months, and more likely, years.  This is of course why the defendants are filing notices of removal and removing almost every state court case to federal court, even where there is really no credible argument for federal jurisdiction.  The challenge, naturally, is filing motions to remand in all these cases and eventually getting those motions heard and decided.

 

As you have fought in such cases across the US, do different state laws impact the outcomes of cases?

The short answer is yes.  As just one example, almost all of the complaints that have been filed thus far rely to greater or lesser degrees on local nuisance law.  We have clients with cases in many different states.  The fact is that public nuisance laws vary from state to state, and are applied differently in different states.  Also, some state laws provide that counties who are plaintiffs can be compelled to litigate in a venue outside of their own county, so it’s critical to understand these different state law nuances.

Another thing I’ll mention is access to prescription drug monitoring program data.  This “PDMP” data from the states can be invaluable to local governments seeking to better understand how their population has been impacted by opioids because it shows the quantities of opioids shipped into specific geographic areas over time.  This can help plaintiffs more easily identify improper prescribing and dispensing practices.  Some states have more restrictive access to this data than others.

Jeffery Reeves

Senior Attorney

ORANGE COUNTY OFFICE
535 Anton Boulevard
Ninth Floor
Costa Mesa, California 92626-7109

714.549.6200

www.tocounsel.com

Jeff’s practice is focused on handling complex business disputes in any forum. He represents companies and individuals in the technology, nutrition, life sciences, entertainment and other industries in business and tort cases and class actions, including handling high-profile, trade secret misappropriation, defamation, and data breach cases.

Jeff is lead counsel for over 30 counties and cities in Arizona, Missouri, Kansas and Maryland who are suing the opioid manufacturers and distributors seeking redress for the societal and financial ills that these local governments have suffered at the hands of those defendants (Federal judge decides Prescott’s lawsuit against opioid companies will be heard in Arizona, Arizona Republic, Aug. 7, 2019; Prescott City Council Hires Law Firms for Possible Opioid Suit, Knau.org, Feb. 13, 2019). He also sits in an ex officio capacity on the Official Committee of Unsecured Creditors for Insys Therapeutics, Inc. in the company’s Chapter 11 cases stemming from the nationwide opioid epidemic.

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