The Purdue Case Is One in a Wave of Opioid Lawsuits. What Should Their Outcome Be?
Two years ago, when I was reporting on the opioid epidemic in one West Virginia county, the exorbitant cost of it—both socially and financially—perpetually astonished me. Narcan, the overdose-reversal drug, yanks people back from the edge of death to live another day and maybe, in time, conquer their addiction. Watching paramedics administer it was like witnessing a miracle over and over again. But Narcan is expensive—it cost Berkeley County, where I was reporting, fifty dollars a dose at the time, and consumed two-thirds of its annual budget for all emergency medications. Since then, the price of naloxone, its generic name, has risen to nearly a hundred and fifty dollars per dose, not because the formula has improved or become costlier to make—the drug has been around since 1961, and off patent since 1985—but because pharmaceutical manufacturers know a profitable market when they see one. According to the National Institute on Drug Abuse, an average of a hundred and thirty people fatally overdose on prescription or illicit opioids every day in the United States. The Centers for Disease Control and Prevention report that four hundred thousand Americans, a war’s worth of dead, died between 1999 and 2017.
In Berkeley County, though, as in so many places across the country, Narcan accounted for just one column on a staggering spreadsheet. Hospitals have had to care for babies born in withdrawal. Foster-care systems have been strained by an influx of children whose families had been turned upside down by addiction. In many communities, the rates of H.I.V. and hepatitis C have climbed, because, once OxyContin pills were reformulated to make them harder to abuse, in 2010, and changes in prescribing practices made them more difficult to obtain, people addicted to them began injecting heroin and fentanyl instead. Funeral homes, county coroners, and state indigent-burial funds have struggled to keep up with the dead. A 2017 analysis by the Council of Economic Advisers estimated that the opioid epidemic has taken a toll on the economy of more than five hundred billion dollars a year.
One way to recoup some of those costs—the only way, really, in our society—is to bring lawsuits against the drug manufacturers and distributors. A wave of such litigation is gathering now. More than fifteen hundred cases instigated by states, counties, cities, tribes, hospitals, and other entities have been bundled together into what is known as a multi-district litigation, or M.D.L. The defendants include pharmaceutical companies, such as Purdue Pharma, the maker of OxyContin; distributors, such as McKesson and Cardinal; and drugstore chains, such as C.V.S. Among the arguments that the plaintiffs’ lawyers are advancing is that the companies, by continuing to promote opioids and downplay their potential for abuse, even in the face of evidence that they are powerfully addictive, created a “public nuisance”—a danger to the health and safety of communities. Meanwhile, the suits allege, distributors and pharmacies neglected to raise red flags over excessive prescribing by individual doctors. The case, which is scheduled to be heard in the fall, in the U.S. District Court for the Northern District of Ohio, by Judge Dan Aaron Polster, could result in a payout of billions of dollars. But the outcome of the M.D.L., with its legions of plaintiffs and a clutch of defendants with varying degrees of potential responsibility for the epidemic, is also uncertain.
Despite the challenges, Polster has made a number of statements to the effect that he wants the case to be resolved quickly—ideally through a settlement—and in a way that will meaningfully respond to the epidemic. “The federal court is probably the least likely branch of government to try and tackle this,” he said in a hearing last fall, “but, candidly, the other branches of government, federal and state, have punted. So it’s here.” He went on, “What I’m interested in doing is not just moving money around, because this is an ongoing crisis. What we’ve got to do is dramatically reduce the number of the pills that are out there, and make sure that the pills that are out there are being used properly.” (That’s fair enough, though by now the locus of the opioid crisis has shifted, from pills to heroin and synthetic narcotics, such as fentanyl.) How fast Polster can move, and how ambitious the settlement that he will oversee is, will also depend, in part, on whether Purdue protects itself by declaring bankruptcy—an option that, Reuters recently reported, the company is considering.
Meanwhile, several states, including Oklahoma, New York, and Massachusetts, have pushed forward with their own lawsuits. Last month, a case brought by Oklahoma’s attorney general, Mike Hunter, reached a two-hundred-and-seventy-million-dollar settlement with Purdue—the first settlement in this wave of opioid litigation. (In 2004, Purdue settled a case brought by West Virginia; in 2007, the company and three of its executives pleaded guilty to federal charges that involved having misled regulators, doctors, and patients about OxyContin.) Two hundred million dollars of that amount will fund an endowment for the Center for Wellness and Recovery at Oklahoma State University–Tulsa, an addiction-research center with an attached clinic. Under the terms of the settlement, Purdue also agreed not to “promote opioids in Oklahoma, including employing or contracting with sales representatives to health care providers in Oklahoma.” Hunter is currently going ahead with a trial, scheduled to begin on May 28th, against other defendants named in the Oklahoma case, including Johnson & Johnson.
All these lawsuits have the potential to generate not only financial compensation but also a moral reckoning, in part by bringing to light information about how the companies operated. The complaint in the Massachusetts case, for example, seems to reveal that members of the Sackler family, which owns Purdue, were more actively involved in the aggressive and deceptive marketing of OxyContin than had been previously documented. (The family has said that the Massachusetts complaint contains “misleading and inflammatory allegations.”)
As the lawsuits move forward, it will be important for public-health advocates and others on the front lines of the crisis to help direct where the settlement money goes. Many of them are thinking about the outcome of the historic settlement that tobacco companies reached in 1998 with a coalition of forty-six states. That deal, known as the Master Settlement Agreement, exempted the companies from further legal liability for the states’ tobacco-related health-care costs; in return, the companies refrained from certain advertising practices, especially those geared to the young—no more billboards touting cigarettes, no more Joe Camel, the cartoon avatar with the bulbous nose. They also made internal company documents produced for the case available to the public, and funded the Truth Initiative, a nationwide public-information campaign about the dangers of smoking. These were important victories, and they helped accelerate a long-term decline in smoking rates, particularly among teen-agers. Andrew Kolodny, an opioid-policy researcher at Brandeis University who is serving as an expert witness in the Oklahoma litigation, told me, “One of the benefits we saw from litigation against Big Tobacco was that people learned how the industry lied—this helped change attitudes about smoking. Litigation against opioid makers could have the same positive public-health impact.”
Under the Master Settlement Agreement, the tobacco companies also committed to pay the states two hundred billion dollars over twenty-five years, and to keep paying them sums tied to cigarette sales in each state in perpetuity. But nothing in the M.S.A. specified how that money was to be spent, and, though one might expect that the bulk of it would be dedicated to the goals of the lawsuits—reducing smoking and promoting public health—that has not generally been the case. In many states, much of the money has gone not to anti-smoking efforts, or even to general spending on health, but instead to closing budget shortfalls, lowering taxes, and funding infrastructure. States treated the agreement like what it felt like: a no-strings-attached gift.
The Oklahoma settlement with Purdue is a reasonable stab at insuring that the money won in opioid lawsuits doesn’t follow a similar route. Yet some public-health advocates I spoke with said that, in the future, they hope more settlement money will go directly to the treatment of addiction. There’s good evidence, for example, that medication-assisted treatment using buprenorphine, naltrexone, or methadone works well for many people trying to get off opioids, but most states don’t have enough of it. Corey Davis, an attorney with the Network for Public Health Law, said that he was glad the Oklahoma money wasn’t just dropping into the general coffers, but he wondered if spending so much of it on a center devoted primarily to research is the best way to go. “It’s always nice to have more research, but it’s not as though we don’t have highly effective therapies, medication and behavioral, already,” he said. “We’re not talking about a rare form of cancer. We know what works.”