Over the last few years, there has been substantial publicity about opiate medications and the potential abuses of those drugs. Since then, there has been one product pulled from the market, and the federal government has suggested that it will be enacting stricter prescription guidelines by January of 2018. In the midst of all of this, both governments and individuals are considering litigation against opiate manufacturers for producing a medication that could have addictive properties for some. This article examines the potential litigation at issue and the possible outcomes of such lawsuits.
There are two types of lawsuits that have been contemplated or have commenced against opiate manufacturers, those involving the government and those by individuals.
(1). Government-based Litigation: According to one news report, “A growing number of U.S. states, counties and cities are filing lawsuits accusing drug companies of deceptively marketing opioid painkillers to downplay their addictiveness… . Mississippi, counties in New York and California and the city of Chicago have filed similar lawsuits against the opioid makers, and plaintiffs lawyers say more are on the way.” Nate Raymond, “U.S. state, local government lawsuits over opioids face uphill battle,” Reuters, Jun. 2, 2017, at https://www.reuters.com/article/us-ohio-opioids-lawsuit-analysis-idUSKBN18T1H4 (last visited Jul. 26, 2017).
According to many attorneys, particularly those for the defense, these lawsuits may be largely unsuccessful because of the fact that each medication in question was approved by the Food and Drug Administration (FDA), and because there were warning labels attached to those medications. See id. However, plaintiffs’ attorneys feel otherwise, and some “lawyers think the number of lawsuits could eventually snowball, resulting in an outcome similar to the $206 billion settlement tobacco companies reached with 46 states in 1998.” Id.
In order to parse these issues out, attorneys on both sides will need the help of expert witnesses, who will be likely to play a key role in persuading judges and juries. Pharmaceutical and medical experts may be indispensable to these cases, as will experts in issues such as government regulation and advertising.
The governmental plaintiffs will certainly have the burden of explaining how the manufacturers of products that the federal government approved and regulated should be held responsible, and experts will be needed to help build such a case.
(2). Individual Lawsuits: In addition to government plaintiffs, individuals who have standing to claim an opiate-related injury have begun to bring lawsuits against opiate producers. Cases brought by individuals are different than those brought by the government in many respects. For example, such cases may have to face the difficulty of responding to the “learned intermediary” doctrine, “which says that the treating doctor had the knowledge to make the proper decision regarding that patient’s prescription. In litigation terms, that means without explicit evidence that the doctor was given faulty information by the drug maker, the liability ends with the doctor.” Max Mitchell, “Can Opiate Litigation Ever Be the New Mass Tort?”, The American Lawyer, Mar. 31, 2017. In such instances, doctors may be the ones to face the harshest legal scrutiny, and such cases are fairly common.
However, a growing number of individuals are pursuing lawsuits against the opiate manufacturers themselves. In fact, “[a]ccording to Anapol Weiss attorney Lawrence Cohan, who focuses on mass torts, his firm has been looking closely at the issue of opiate addiction, given the growing attention it’s been getting. He said that with other entities looking at the issue, such as the investigation launched by McCaskill, new information could arise that would lead to a serious uptick in these cases. ‘I would anticipate, because it’s a huge nationwide problem, there will be more individual lawsuits,’ he said. ‘There is the potential for lawsuits against manufacturers and sellers, and even the potential for mass tort claims does exist.’” Id.
Regardless of which side an attorney represents in such cases, expert testimony will be essential. Medical professionals will likely be asked to weigh in on these cases, and experts in advertising, pharmacology, and addiction may also play an important role.
Opiate use and abuse have become widely-discussed political issues, and they are also quickly becoming common legal ones. Regardless of who the parties are in such lawsuits, attorneys will find opiates experts in the field to be invaluable assets in helping to further their cases.