Just as there are multiple causes that led to the opioid crisis, there are multiple intersections of response needed to address it, said Abbe R. Gluck, professor of law and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School at Georgia State Law’s Order of the Coif Distinguished Visitor Lecture on March 27.
“Law alone can’t solve a public health crisis of this scale, but as lawyers, our hope is law whether legislative, regulatory or litigation can be as productive a partner as possible,” she said.
One important way litigation is helping is by framing a narrative about responsibility in the opioid crisis. Initially, lawsuits were primarily brought against drug manufacturers and doctors, but plaintiffs have begun to cast a broader net, holding a lot more entities responsible, including pharmacies and drug distributors.
“These entities might not have seen their role before to watch and raise red flags, but now with lawsuits and settlements they may be re-conceiving how they see their role going forward,” Gluck said.
The same is true for the Joint Commission, which is revising its pain management standards because of a lawsuit alleging it downplayed the negative effects of opioids, among other things.
But the wide net of responsible parties also makes litigation strategy difficult.
“Courts have already expressed concern that liability is going to be hard to find for any one kind of defendant because there are so many different links of the causative chain,” Gluck said.
“Doctors say they are prescribing a drug dually approved by the FDA. Distributors argue that doctors and patients with substance abuse disorders are links between them and the product,” Gluck said. “CVS argues that it’s further down the line and cannot possibly be liable for any particular dent.”
This complex chain of responsibility differentiates opioid crisis litigation significantly from the public health litigation to which it is most often compared, big tobacco.
“As in the case of opioids, the tobacco cases were brought largely by states to address a massive public health issue. Some of the experience of the tobacco has raised similar concerns in opioids,” Gluck said.
For example, many think that the settlements in tobacco cases were too low, and when they were received they weren’t used for counter-prevention or public health measures. Another criticism of big tobacco cases is that lawyers settled early for huge rewards rather than push for change that would truly protect public health. Similar concerns are being raised regarding opioid litigation.
At the same time, the opioid crisis has significant differences from tobacco that complicates the litigation. Along with the large chain of responsible actors, opioids have been approved as safe, effective and needed, unlike tobacco.
The most significant development in the opioid crisis is the consolidation of lawsuits into a multi-district litigation (MDL), the same type of litigation used for the NFL concussion cases. The MDL has been assigned to U.S. District Judge Dan Polster of the Northern District of Ohio, and a settlement conference is scheduled for May. Cases continue to be added to the docket every week.
More than 97 percent cases in MDL settles in the MDL court, Gluck said. “The nature of cases that tend to be consolidated in MDLs are huge sprawling cases that pose intractable numbers with intractable problems. The only way to get relief is to have some kind of universal settlement.”
Based on statements from Polster, Gluck said the court is going to take more of a legislative than litigation approach to the crisis.
“This is a problem-solving endeavor, it’s not litigation,” she said.
Settlement seems likely, but the question is whether it will be enough—will action specifically be directed to populations in need.
“If the remedy isn’t efficient, all this energy focused on the litigation could have the detrimental effect of taking the wind out of the sail of what would been more positive change,” Gluck said. “Either way, litigation has certainly set the agenda and raised the profile of the crisis.”