Opioids have caused or contributed to more than 450,000 deaths over the past two decades, and the crisis is far from over. Drug companies like Purdue Pharma (maker of OxyContin), distributors like CVS and Walmart, and others are facing legal action from states, cities, counties—and a wave of "mass tort"-style litigation from individual plaintiffs may be coming.
In this article, we'll:
It's fairly safe to say that Purdue Pharma's OxyContin kicked off the opioid crisis in the 1990s. Purdue and its owners, the Sackler family, are accused of aggressively marketing opioid drugs and misleading the public on just how addictive they are.
In 2007, Purdue pleaded guilty to federal criminal charges that it had misrepresented OxyContin's risks to stakeholders. Ten years later, the U.S. Department of Health and Human Services declared the opioid epidemic a national crisis. Since then, we have reached an average 50,000 opioid-related deaths a year in the U.S., and the numbers continue to rise.
In December 2017, the Judicial Panel on Multidistrict Litigation consolidated 64 opiate actions into federal court in Ohio for pretrial proceedings in what is known as "multidistrict litigation." These lawsuits, filed primarily by counties and cities, allege that:
The MDL (officially called In Re National Prescription Opiate Litigation) soon grew to almost 2,900 lawsuits. These municipality complainants seek recovery of costs they have incurred dealing with opioid addiction in their jurisdictions. The Plaintiffs' Executive Committee in the Opioid MDL established a "negotiation class" that includes all counties and cities, to capture those municipalities that might not be an active part of the litigation but will likely have viable claims in the future. The negotiation class does not include individuals or tribes.
Some of the more disturbing allegations revealed in the lawsuits include opioid manufacturers paying thought leaders in the industry to publish articles promoting the benefits of opioid use, without warning of the risks. Among the defendants are distributors and pharmacies like McKesson Corporation and CVS. According to federal data, these defendants rarely raised red flags even when drug quantities ordered were "wildly disproportionate" to the pharmacies' local populations. Distributors are alleged to have knowingly shipped millions of pills to cities with only hundreds of residents.
In December 2020, the Justice Department sued Walmart for fueling the crisis by filling suspicious opioid prescriptions. The complaint exposes numerous instances of Walmart employees warning company managers about suspicious prescriptions but nonetheless being directed to fill them. A federal judge recently dismissed Walmart's preemptive lawsuit, filed just weeks before it was sued by the Justice Department, citing the Justice Department's sovereign immunity.
In the meantime, the Covid-19 pandemic has added stress and grief to an already untenable situation for those addicted to or recovering from opioid abuse. August 2019 to July 2020 produced the highest number of overdose deaths of all drugs, and opioids were attributed with 73% of those deaths, according to Bloomberg.
Investigators have cast a wide net in identifying those responsible for the opioid epidemic, in an effort to determine what they knew and when. There are multiple defendants under scrutiny, from manufacturers to prescribers and distributors.
Irrespective of Purdue's admission of guilt more than a decade earlier, the opioid lawsuits recently revealed thousands of documents detailing how McKinsey & Company, a marketing consultant to Purdue Pharma, promised to "turbocharge" opioid sales. McKinsey advised Purdue to focus on marketing high-dose prescriptions, despite clear evidence that the opioid epidemic in the U.S. had been escalating for years. The revelations prompted McKinsey to settle investigations into its role in the opioid crisis for $600 million in February 2021. States will use the settlement proceeds for opioid prevention and recovery programs.
Inundated with lawsuits, and likely in an effort to manage the litigation, Purdue Pharma filed for bankruptcy in 2019. In November 2020, the federal bankruptcy judge approved Purdue's $8.3 billion settlement of a lawsuit filed by the Department of Justice in which Purdue pleaded guilty to three criminal charges. The deal included a provision whereby individuals within the Sackler family would forfeit $225 million, a mere fraction of the fortune they earned on the backs of Americans who suffer the consequences of lifelong addiction.
Since 2015, defendants have settled multiple claims at a premium of billions of dollars. Reminiscent of the tobacco litigation, these payouts have primarily gone to government entities:
Additional defendants have settled millions of dollars in claims since 2015. Yet, despite the promising nature of defendants succumbing to pressure by governmental entities, the question remains: What about the families affected?
While the MDL consists primarily of cities, counties, and tribal governments, individuals can file a lawsuit against the opioid manufacturers when they meet certain criteria. While these factors will vary among law firms, in general, individuals harmed by opioids can file a lawsuit when the victim was prescribed an FDA-approved opioid, and:
Individual lawsuits claim opioid manufacturers and distributors caused or contributed to victims' addictions. The most viable individual claims appear to be wrongful death cases, although addiction in and of itself is an injury for which victims might be compensated.
The Biden Administration has promised to make opioid addiction treatment and prevention a priority. Efforts will include:
If you're considering legal action over addiction or any other type of harm for which an opioid manufacturer or others might be legally responsible, talk to an attorney to get a sense of the current legal landscape and your options.