Addressing the Opioid Crisis Within The Courtroom

John Simon, Associate Member, University of Cincinnati Law Review

In the 1990s, following the publication of several studies detailing the United States’ failure to appropriately treat pain, as well as the lowly-addictive nature of opioids, health organizations, including the American Pain Association and the Veteran’s Health Administration, sought a major restructuring of the United States’ pain treatment policies.[1] In 2000, during the push for reform, the Joint Commission (TJC),[2] which accredits healthcare organizations, developed standards for pain management; the standards permitted an increased reliance on opioid prescriptions.[3] Additionally, the Federation of State Medical Boards and the Drug Enforcement Agency promised less regulatory oversight of opioid prescribers.[4] Naturally, physicians felt much more at ease when prescribing opioid medication; however, pharmaceutical companies urged health organizations to prescribe opioid medication as a “humane treatment option.”[5]

This pro-opioid sentiment has culminated in the United States Department of Health and Human Services declaring a public health emergency in 2017.[6] From 1999 to 2016, over 350,000 deaths have been reported and linked to opioid overdose.[7] Additionally, in 2016, approximately 11.5 million Americans reported misuse of prescription opioids.[8]

As court dockets have become increasingly flooded during the opioid crisis,[9] prison populations have also risen. Studies show that of those individuals who have been prescribed an opioid, twenty percent have some history with the criminal justice system; that number rises to forty percent when accounting for heroin users.[10] These studies also suggest that prisons are ill-equipped treat inmates with opioid addiction.[11] Local municipalities have funneled billions into healthcare, law enforcement, and social services to combat the ballooning effects of the opioid crisis.[12] The end is nowhere in sight. So, what’s next?

Municipalities, states, tribes, medical personalities, and individuals have brought suit against the pharmaceutical companies and drug distributors with the intent of holding these parties responsible for the crisis.[13] New York Attorney General Eric T. Schneiderman noted: “Too often, prescription opioids are the on-ramp to addiction for millions of Americans…[w]e’re committed to getting to the bottom of a broken system that has fueled the epidemic and taken far too many lives.”[14] Many suits have been joined together in a multidistrict litigation in the Northern District of Ohio; other suits brought against the pharmaceutical companies are being heard by local courts.[15]

The suits feature claims of fraud, negligence, unjust enrichment, false advertising, and deceptive marketing. Pharmaceutical companies have filed motions for dismissal arguing that the plaintiffs are ignoring independent factors related to the opioid epidemic, and that they previously and adequately disclosed the risk of addiction.[16] U.S. District Judge Dan Polster, the judge sitting on the pending cases, has scheduled the trials for three of the cases for the upcoming year. Judge Polster also has stressed that the parties should attempt to reach a settlement—considering litigation could be drawn out several years.[17]

Commentators, including the attorneys representing parties against the pharmaceutical companies, note the comparisons of the opioid legal fight with the legal fight regarding tobacco.[18] In 1998, major tobacco product producers reached an agreement with a significant portion of the States and United States’ territories in which the tobacco companies would pay $240 billion to combat tobacco use.[19] However, a fraction of the agreed amount has actually been used for the stated purpose.[20] State officials who attempted to control the manner in which the settlement money was utilized faced stark opposition and ultimately failed to overcome the legal and political hurdles.[21]

The legal battle regarding opioids has yet to truly commence; many things remain uncertain – for instance, whether there will be a settlement, or whether Judge Polster dismisses the claims altogether. However, what seems certain is that the plaintiffs, to avoid the failures associated with the settlement reached with tobacco product manufacturers, need to be prepared for what follows from a favorable ruling and a massive payout.

[1] See generally Mark R. Jones et al., A Brief History of the Opioid Epidemic and Strategies for Pain Medicine, 7 Pain and Therapy 13, 13–21 (2018) (providing background information pertaining to reasons for increased opioid prescriptions).

[2] About The Joint Commission, The Joint Comm’n, https://www.jointcommission.org/about_us/about_the_joint_commission_main.aspx (last visited Sep 4, 2018).

[3] Jones et al., supra note 1.

[4] Id.

[5] Id.

[6] What is the U.S. Opioid Epidemic?, U.S. Dep’t of Health  and Human Services, https://www.hhs.gov/opioids/about-the-epidemic/index.html (last visited Sep 4, 2018).

[7] Paul Demko, Opioid Court Fights Risk Repeating Tobacco’s Failures, politico (May 24, 2018), https://www.politico.com/story/2018/05/24/opioids-epidemic-tobacco-607119.

[8] What is the U.S. Opioid Epidemic?, supra note 6.

[9] Opioids and the Courts, Nat’l ctr. for state courts, https://www.ncsc.org/opioidsandcourts (last visited Sep 4, 2018).

[10] Rhitu Chatterjee, With More Opioid Use, People Are More Likely To Get Caught Up In The Justice System, politico (Jul. 6, 2018 2:28 PM), https://www.npr.org/sections/health-shots/2018/07/06/626176621/with-more-opioid-use-people-are-more-likely-to-get-caught-up-in-the-justice-syst.

[11] Id.

[12] Andrew Harris et al., Justice for Opioid Communities Means Massive Payday for Their Lawyers, bloomberg (Jul. 25, 2018), https://www.bloomberg.com/graphics/2018-opioid-lawsuits/.

[13] Id.

[14] A.G. Schneiderman, Bipartisan Coalition Of AGs Expand Multistate Investigation Into Opioid Crisis, NY State Office of the Attorney General (Sept.19, 2017) https://ag.ny.gov/press-release/ag-schneiderman-bipartisan-coalition-ags-expand-multistate-investigation-opioid-crisis.

[15] Harris et al, supra note 12.

[16] Id.

[17] Id.

[18] Demko et al., supra note 7.

[19] Id.

[20] Id.

[21] Id.

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