The number of government lawsuits against prescription opioid makers and distributors is rising rapidly.
"There are over a hundred that have been filed by state governments, federal governments, local governments, and then Native American tribes,” said Rebecca Haffajee, assistant professor at the University of Michigan’s School of Public Health.
Haffajee thinks those lawsuits could be an effective tool in the fight against the opioid epidemic, as she wrote in a recent New England Journal of Medicine article.
The opioid epidemic has had devastating consequences. In Michigan, nearly 1,700 people died of overdoses from an opioid drug in 2016. Across the country, there were almost 50,000 opioid overdose deaths that same year.
But attempts to hold manufactures and distributors accountable in court through personal injury lawsuits haven’t been all that successful. The companies being sued, according to Haffajee, have a pretty strong defense. They can say that the doctors prescribing opioid drugs were making bad decision or the patients themselves were using the drugs in a different way than prescribed.
"And that makes it really difficult to pin all of the blame on manufactures and distributors,” explained Haffajee.
She says state and local governments have a much stronger case because there is no doctor or patient to blame.
"The government is bringing the suit and saying ‘You opioid manufacturers and distributors ... you have in some way debilitated our social system and we need to repair them.’”
Haffajee says the legal arguments governments are using in these cases avoid some of the pitfalls of individual personal injury suits as well as previous public health lawsuits against tobacco and firearms companies.
“In some of these cases, the government is claiming unjust enrichment and Medicaid fraud for all of the claims they have had to pay for under the Medicaid program for these drugs,” said Haffajee.
The lawsuits have not resulted in the kinds of huge payouts previously seen from the tobacco industry. The largest so far was a $600 million federal settlement with Purdue ten years ago. But Haffajee is optimistic that the suits being filed by federal, state, and local governments have a good chance of getting what they need most to deal with the opioid epidemic.
"The opioid epidemic is in the tens or hundreds of billions per year in cost to society, so we need much much more money."
The so-called “Tobacco Master Settlement Agreement” forced large tobacco firms to pay a minimum of $206 billion dollars over 25 years. Haffajee says if opioid manufacturers and distributors face the similar financial consequences, governments could start to pay for the costly consequences of the epidemic. That includes additional law enforcement efforts, addiction treatment for people hooked on the drugs, and the strain on the foster care system.
"I think the challenge will be in ensuring that governments do use the money for appropriate causes and don't divert it to unrelated purposes,” said Haffajee.
Haffajee says that while lawsuits against manufacturers and distributors might be a useful tool in stemming the opioid epidemic, they aren’t a silver bullet. It took decades, she says, to get into the epidemic, and she thinks it will take at least a decade to get out of it.