In the past year, public attention about opioid use has been focused on the personal tragedy of those directly affected by addiction and death. In addition to devastating families and communities, however, this attention is also putting a bright light on some huge potential winners – or losers – in the long run: Pharmaceutical companies that make opioids.
The industry’s legal challenges are only now beginning to mount. According to the National Association of Attorneys General, at least 25 states have sued drug manufacturers or wholesale distributors for their role in opioid addiction.
In lawsuits filed this month, Ohio and Missouri accuse companies of deceptive marketing. And most recently, Chicago mayor Rahm Emanuel announced he would file a lawsuit against pharmaceutical companies for misrepresenting the dangers of opioids.
While plaintiffs have yet to put a price tag on their legal claims, it’s not hard to imagine them seeking billions of dollars from companies that make OxyContin and Percocet. Although Purdue Pharma already set a $270 million precedent with its 2007 OxyContin settlement in Virginia, how drug companies will settle these cases is still uncertain.
But one thing is certain: The opioid industry will not be able to use the same strategy that has worked for Big Tobacco companies in the past. And that means they stand a very good chance of losing lots of money.
The reason? Opioid litigation is nothing like tobacco litigation.
For more than 50 years, cigarette makers successfully argued that smokers assumed the risks of smoking and that no product was 100 percent safe. State attorneys general eventually came to believe those claims and settled for billions of dollars.
But opioid litigation is not nearly as clear-cut. The industry’s marketers and salespeople were not as overt as Big Tobacco – and the risks of addiction and overdose were known long before opioids achieved their current grip on millions of Americans.
It’s true, as Purdue pointed out in a statement to the Chicago Tribune, that “prescription opioids medications…have made – and continue to make – an enormous impact on improving the lives of millions of pain sufferers.”
But the industry also used misleading information about how effective opioids are for chronic pain and failed to consider the risks of addiction.
The industry even sought government approval to sell painkillers in higher doses, which appear to be at least part of the reason why prescriptions and opioid overdose deaths have skyrocketed in recent years.
“Prescription opioids are highly addictive,” says white-collar defense attorney Ken Julian. “Their sales and marketing strategies…seem to have been designed, at least in part, to encourage long-term use of these drugs for chronic pain. That is not consistent with safe prescription of controlled substances.”
So far, legal action has focused chiefly on drug distributors. The U.S. Drug Enforcement Administration (DEA) recently took aim at McKesson, the nation’s largest drug wholesaler, for failing to report suspiciously large orders of opioids. (The company has denied allegations in a lawsuit by the West Virginia attorney general.) Other distributors and pharmacies have also been named in lawsuits.
But Big Pharma faces its own legal challenges. Kentucky is suing Purdue and three other drug companies. Missouri sued four opioid manufacturers in February. And Ohio has sued five manufacturers and two wholesalers since announcing a lawsuit against its opioid distributors in May.
The industry’s legal problems add to the pressure it already faces from government agencies, doctors, and consumers about its role in the opioid epidemic. According to Julian, the industry will find it difficult to defend itself against all of these claims. “To get into a courtroom and argue that they should not be held liable because opioids are valuable, when in fact their marketing has been misleading and deceptive, is going to be an uphill battle,” he said.
“The opioid litigation we’ve seen so far suggests there is a scope of liability that could be quite broad.”