Different colored pills lined up

Recent Developments in Opioid Litigation: A Re-Cap, Visual Aid, and Summary of Outstanding Inquiries

Media reports suffered no shortage of hot takes concerning opioid “arch-villain” Purdue Pharma’s agreement to pay $270 million to settle its OxyContin lawsuit in Oklahoma. The highlights of that settlement include Purdue’s payment of $102.5 million to fund a new Center for Addiction Studies and Treatment at Oklahoma State University, $60 million for attorney’s fees and litigation expenses, $20 million worth of drugs to treat opioid use disorder, and $12.5 million to cover the opioid-related costs incurred by Oklahoma’s local governments. Members of the Sackler family, who were not named as defendants in the litigation, also agreed to contribute an additional $75 million to Oklahoma over a five-year period.

A noteworthy concentration of the media coverage dedicated to Purdue’s Oklahoma settlement has involved speculation regarding its potential impact on the numerous outstanding opioid cases in other states as well as the myriad federal cases aggregated in the opioid multidistrict litigation (Opioid MDL) before the United States District Court for the Northern District of Ohio. The New York Times, for example, was quick to claim that the Oklahoma resolution “could jolt other settlement talks with [Purdue], including those in a consolidated collection of 1600 cases overseen” in the Opioid MDL. The Wall Street Journal similarly reported that “Purdue Pharma LP has forged the first deal to resolve more than 1,600 lawsuits blaming the OxyContin maker for fueling the opioid crisis, a move that could lay the groundwork for the resolution of the rest of the litigation.”

Predictions regarding the Opioid MDL’s end game have been further fueled by Purdue’s March 4 announcement that it is “exploring” a bankruptcy filing to address its OxyContin-related liability. Notably, a Purdue bankruptcy would have no impact on the claims that numerous states and other entities have brought against members of the Sackler family. New York, Massachusetts, Connecticut, Rhode Island and Utah have named members of the Sackler family as defendants, contending that they aggressively pushed OxyContin even after “the company admitted in a 2007 plea deal that it had misrepresented the drug’s addictive qualities and potential for abuse.”

Moreover, more than 500 local governments and Native American tribes have sued the Sacklers individually in the cases consolidated on the Opioid MDL.

And the Sacklers’ exposure to public wrath and potential liability does not end there. The New York State lawsuit against them uncovered internal Purdue documents that purportedly demonstrate that the Sacklers attempted to capitalize on opioid use disorder by selling drugs used to treat opioid addiction—a venture they monikered “Project Tango.”

According to New York’s complaint, one Project Tango diagram states that “[p]ain treatment and addiction are naturally linked” and the Sacklers “illustrated this point, and the business opportunity it presented, with a funnel beginning with pain treatment and leading to opioid addiction treatment[,]” as follows:

The Sacklers’ well-deserved woes notwithstanding, important questions remain regarding Purdue’s Oklahoma settlement and its potential impact on the Opioid MDL and other state cases.

A threshold question here is whether the $270 million settlement constitutes fair and adequate compensation to the state and local governments, and the Oklahoma public. An easy answer to that inquiry, however, is elusive. On the one hand, it is feasible to argue that, given the breath and scope of Purdue’s knowingly fraudulent OxyContin marketing campaign and estimated $35 billion windfall from sales of the drug, the settlement represents a deal for Purdue at the expense of those who have borne the extravagant emotional and economic costs related to opioid use and overdose. For example, Oklahoma filed a consultant’s report in its litigation against Purdue contending that it would cost the state in excess of $8.7 billion to abate the opioid crisis over the next 20 years. Family members of individuals who succumbed to an opioid-related overdose have raised objections to the settlement, characterizing the agreement as “disgusting” and asking “[h]ow many lives were worth $270 million?”

On the other hand, and while Purdue has distinguished itself as a nefarious actor of almost mythical proportions in the opioid crisis, Purdue is not the only pharmaceutical manufacturer that marketed and sold opioids in the United States. In fact, opioid manufacturers Johnson & Johnson and Teva Pharmaceutical have refused to enter into a settlement agreement with Oklahoma and remain scheduled to go to trial on the claims against them on May 28. The lead Opioid MDL plaintiffs’ attorneys have sued approximately two dozen defendants in the consolidated federal cases and recently emphasized that “Purdue’s wrongdoing . . . does not stand alone.”

More importantly and as Professor Nicholas Terry convincingly contends, exclusively blaming opioid manufacturers for the American opioid crisis amounts to “oversimplify[ing] what is manifestly a wicked problem with multiple, interlocking causes.”

Singling out opioid manufacturers as the only problem, moreover, can limit the implementation of comprehensive, public health reforms aimed at addressing the root causes of the opioid crisis, including social determinants of health and the grossly inadequate performance of the American healthcare delivery system when it comes to providing affordable access to evidence-based opioid use disorder treatment.

The Oklahoma settlement and the ongoing Opioid MDL cases raise numerous other challenging queries that are worth exploring. As Professor Leo Beletsky opined this week, does “[t]he amount and structure of the [Oklahoma] settlement enable the state to do a victory lap, while allowing the pharmaceutical giant to walk away with a slap on the wrist”? Does the fact that state executive branch officers negotiate these settlements, which often include regulatory mandates, raise separation of powers concerns? Does it benefit the public interest to outsource the litigation of these types of claims to a small cadre of “repeat player” plaintiffs’ attorneys? Are MDL judges successful in “nudging” the parties toward settlement and, to the extent that they are, do such results tend to benefit the plaintiffs? If mass tort complex litigation history is any lesson, what is the best potential outcome that we can expect from the Opioid MDL and what is the worst potential result?

In order to glean insight regarding these difficult questions, I reached out to Elizabeth Chamblee Burch, who is the Fuller E. Callaway Chair of Law at the University of Georgia School of Law and a national expert in complex litigation, mass torts, multidistrict ligation, and civil procedure.

Professor Burch graciously agreed to share her extensive relevant expertise on short notice and our intriguing discussion will be the topic of my next blog post. In the meantime, I highly recommend that interested readers review Professor Burch’s excellent mass tort and complex litigation scholarship, which is located here.

 

Jennifer D. Oliva is a Visiting Scholar at the Petrie-Flom Center. 

 

Jennifer Oliva

Jennifer Oliva

Jennifer Oliva is an Associate Professor at West Virginia University College of Law and School of Public Health. In the College of Law, she teaches torts, evidence, and public health law courses and directs the Veterans Advocacy Clinic. She is a Visiting Scholar at the Petrie-Flom Center.

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