By Dane O’Leary
If you’re a legislator or public official in contemporary America, one of your primary duties revolves around finding a solution to the opioid epidemic. For instance, many would agree that the defining feature of former president Barack Obama’s tenure was the passing of the Affordable Care Act, which effectively expanded access to health coverage and, perhaps even more importantly, made substance abuse treatment an essential health benefit. Unfortunately, despite making treatment more accessible to those in need, the number of annual deaths that occur from opioid overdose continues to increase, showing just how elusive that solution has been.
Across the U.S., tens of thousands of people die from opioid drugs every year. It’s the worst drug crisis in recorded history by a significant margin, an unsettling truth reinforced by the fact that opioid drugs have become one of the leading causes of preventable death for Americans. And in the midst of the ongoing scramble to find some way of mitigating the opioid crisis, we’ve begun to see a new type of legislation in the form of lawsuits seeking retribution for the countless lives lost to an epidemic that was largely instigated by pharmaceutical companies.
The City of Dayton Sues Big Pharma
Many people have questioned the labeling of the opioid crisis as an “epidemic” since the term is often used to refer to the rapid spread of infectious diseases. However, the speed with which the furthest corners of the United States were ravaged by rampant opioid abuse is why many consider the crisis deserving of the designation. In fact, certain states have been especially devastated by the opioid crisis, including Ohio. In 2015, Ohio accounted for approximately ten percent of all opioid overdose deaths,1 which is a larger percentage of the annual nationwide opioid overdose deaths than any other state. Further, opioid overdose deaths have reached such a level that local coroners’ offices are running out of room to store victims’ bodies.2 As a result, Ohio officials are beginning to seek justice against the powers they believe are to blame for the ongoing opioid crisis.
It was late May when there were the first rumblings of Ohio public officials — namely Dayton Mayor Nan Whaley and Ohio Attorney General Mike DeWine3 — possibly taking pharmaceutical companies to court. Sure enough, Dayton representatives filed the lawsuit in early June, citing the aggressive marketing of addictive drugs by five pharmaceutical companies as a major catalyst for the current opioid crisis. The specific companies mentioned in the suit are Purdue Pharma, Endo Health Solutions, Teva Pharmaceutical Industries (and subsidiary Cephalon), Janssen Pharmaceuticals (subsidiary of Johnson & Johnson) and Allergan (formerly Actavis).4 While it may sound like vengeance is what’s fueling the lawsuit, Mayor Whaley made a public statement to clarify the intent of the lawsuit, which is to force Big Pharma to fix its mistake.
“We believe the drug companies made this mess,” Whaley said. “And it is time they… started paying to clean it up.” Moreover, Whaley expressed regret that the lawsuit does not go far enough and cannot hold the entire pharmaceutical industry accountable.
Is There a Precedent?
The short answer is that, yes, there is precedent, but only from the very recent past. On the whole, the prospect of entire cities filing lawsuits against pharmaceutical companies for their complicity in the opioid epidemic is relatively novel.
Dayton isn’t the first city to file a lawsuit against pharmaceutical companies. That designation goes to the city of Everett, Washington. In January, reports surfaced of a lawsuit being filed against Purdue Pharma — known for OxyContin and the drug’s subsequent aggressive marketing campaign — by the city of Everett.5 According to the lawsuit, Purdue essentially “turned a blind eye” to the fact that OxyContin was being illegally trafficked on the streets so as to safeguard the company’s profits. The lawsuit even alleges that representatives at Purdue Pharma consciously failed to inform law enforcement of problem with OxyContin being trafficked illegally. In the suit, the city of Everett wanted Purdue held accountable for knowingly supplying OxyContin to suspicious healthcare providers and for allowing the diversion of the drug into the black market. In short, the lawsuit alleged that Purdue Pharma is guilty of gross negligence.
Most believe Everett’s suit was prompted by an investigation by The Los Angeles Times that uncovered evidence of Purdue Pharma having extensively tracked and documented the trafficking of OxyContin throughout the U.S. over a period of ten years.6 However, the drug company chose not to reveal this information with authorities. Whether the revelation was the catalyst or merely the final straw, numerous other communities have followed suit, filing their own lawsuits against the likes of Purdue Pharma, Endo Pharmaceuticals and other companies.
It seems that Everett was only the first domino to fall as within just a few weeks of the town’s suit being filed, multiple cities in West Virginia filed their own lawsuits, naming many of the same pharmaceutical companies as the Dayton suit for the major role they played in causing the opioid epidemic.7 As well, Nassau County8 — one of the counties that comprise Long Island, New York — has joined as many nine Tennessee counties9 and a growing number of other cities that are suing Big Pharma. Meanwhile, representatives from these communities, including the mayor of Lorain, Ohio,10 beckon neighboring cities and towns to take these pharmaceutical companies to court, too.
Will It Work?
Even with a concerted effort to make the pharmaceutical industry accountable for the opioid epidemic, it’s debatable whether or not the lawsuits will actually make any positive difference. For one thing, we’ve long since known that there was no single source of the opioid crisis. Although aggressive marketing of addictive drugs played a part, there were other contributors, too, including malpractice among healthcare providers and pharmacies. Meanwhile, even the scientific community was conservative when it came to publicizing the dangers and addictive potential of painkillers.11 It’s worth mentioning, too, that the Food and Drug Administration continued to approve potent and highly addictive opioids, which saturated the pharmaceutical marketplace.
The current lawsuits against Big Pharma are quite reminiscent of lawsuits filed against Big Tobacco just a couple decades ago. As it happened, the public had finally became aware of the long-term dangers associated with tobacco products, resulting in similar lawsuits being filed against tobacco companies.
Much like the current lawsuits against pharmaceutical companies, we had hoped settlements would fund things like anti-smoking campaigns and help with spreading awareness about the dangers of tobacco products. In late 1998, the tobacco industry reached an agreement with 46 states that exempted the tobacco industry from liability for the effects of tobacco products in exchange for annual perpetuity payments made to those states. The agreement was called the Tobacco Master Settlement Agreement12 and many believed those perpetuity payments would be put toward anti-smoking campaigns, but the vast majority has gone toward totally unrelated expenditures.13
So while we might hope that lawsuits against pharmaceutical companies would yield funding for more beds at rehabs or research into new methods of treatment, we should remember that there’s always the possibility that the states may be no better off after these lawsuits than they were before.
1 Jaegar, Kyle. “How Ohio Became the Center of the Opioid Crisis.” ATTN.
2 de Freytas-Tamura, Kimiko. “Amid Opioid Overdoses, Ohio Coroner’s Office Runs Out of Room for Bodies.” The New York Times.
3 Frolik, Cornelius. “City of Dayton to file lawsuit against drug manufacturers, distributors.” WHIO.
4 Borchardt, Jackie. “Ohio’s opioid lawsuit against 5 pharma companies: 6 things to know.” Cleveland.com.
5 Ryan, Harriet. “City devastated by OxyContin use sues Purdue Pharma, claims drugmaker put profits over citizens’ welfare.” The Los Angeles Times.
6 Ryan, Harriet, Girion, Lisa, & Glover, Scott. “‘You want a description of Hell?’ OxyContin’s 12-hour problem.” The Los Angeles Times.
7 Yarvin, Jessica. “Another West Virginia town sues drug wholesalers.” PBS.
8 McShane, Larry. “Nassau County to sure pharmaceutical companies over growing opioid epidemic on Long Island.” New York Daily News.
9 Satterfield, Jamie. “Tennessee counties slap Big Pharma with lawsuit over opioid epidemic costs.” The Knoxville News Sentinel.
10 Johnson, Alan. “Doctors, Cardinal Health included in cities’ lawsuits over opioid epidemic.” The Columbus Dispatch.
11Gounder, Celine. “Who Is Responsible For The Pain-Pill Epidemic?” The New Yorker.
12 “The Tobacco Master Settlement Agreement.” The Public Health Law Center.
13 Estes, Jim. “How the Big Tobacco Deal Went Bad.” The New York Times.