As trials begin in March, all eyes are on the multi-state opioid litigation against pharmaceutical manufacturers and distributors. More than 30 states, including hard-hit Ohio and West Virginia, and nearly 1,500 cities and counties have filed suit against pharmaceutical companies, wholesalers, and pharmacies for their role in the opioid crisis. Every day, more than 130 people in the United States die after overdosing on opioids, which include prescription painkillers like OxyContin, Percocet, and Fentanyl, according to the National Institute of Drug Abuse. Experts says these lawsuits are likely to lead to marketing restrictions for the drugs and the biggest settlement since Big Tobacco paid out $250 billion in 1998.

Coincidentally, the man who brought down Big Tobacco, Mississippi lawyer Mike Moore, is heading the charge against the opioid industry. The 65-year-old, who served as Mississippi’s attorney general from 1988 to 2005, is formally representing four states, including Ohio, and coordinating with many of the other state and local governments. “Ohio is losing $4 billion or $5 billion a year from the opioid epidemic. And they’re losing 5,000 or 6,000 people a year from overdose deaths,” Moore told 60 Minutes in December. “So when a jury hears the evidence in this case, they’re not gonna award just a couple hundred million dollars. It may be $100 billion. And whoever amongst these companies thinks they can stand up to that? Good luck.”

There are three central arguments in this litigation:

The first allegation is that opioid manufacturers, including Purdue Pharma, Endo Pharmaceuticals, and Johnson & Johnson’s Janssen Pharmaceuticals, among others, downplayed the risks of opioids in the late ’90s, marketing the drugs to the medical community as non-addicting, which resulted in healthcare providers prescribing them more aggressively. Some physicians, identified as “key opinion leaders,” were paid by manufacturing-defendants to encourage opioid prescribing. Some of these same physicians are also now listed as defendants.

Purdue Pharma told 60 Minutes in a statement that when the FDA approved OxyContin in 1995, it authorized the company to state on the label that “addiction to opioids legitimately used is very rare.” But the news show notes that the company admitted in federal court in 2007 that it had misled doctors and consumers about how addictive OxyContin can be. The lawsuits argue that opioids are addictive both when they are misused and when they are used as directed.

The second argument is that distributors—including AmerisourceBergen, McKesson Corp., and Cardinal Health (known as the “Big Three”)—allegedly distributed more than 80 percent of the opioids at issue and failed to monitor, investigate, refuse, or report suspicious orders of prescription opioids, flooding states with the drugs.

A 2016 investigation by the Charleston Gazette-Mail found that in six years, drug wholesalers bombarded West Virginia with 780 million hydrocodone and oxycodone pills, while 1,728 residents fatally overdosed on those two painkillers. And in Kermit, West Virginia, which has a population of only 392 people, 9 million opioid pills were delivered to a single pharmacy in just two years. “The distributors are saying things like, ‘We’re just truck drivers. We didn’t know where the pills went,’” Moore told 60 Minutes. “Of course they did. There’s a Controlled Substances Act. You’re supposed to control these pills. And when you don’t, you have a responsibility for it. It’s real simple.”

The third claim is that pharmacies and distributors, including big names like Walmart, CVS, and Walgreens, knew they were selling too many pills, creating addiction and a black market—but did nothing about it.

According to litigators we spoke to, expert witnesses are likely to be used heavily in these cases to put the science in perspective and industry regulations in context. To prove each opioid-related case, law firms will need evidence that the companies engaged in fraud or understated the risks. Take, for example, the argument that doctors didn’t fully understand that the drugs were potentially addicting—litigators will need scientists to add color to that idea.

According to The Centers for Disease Control and Prevention, the total “economic burden” of prescription opioid misuse in the U.S. is an estimated $78.5 billion a year. That figure includes the costs of healthcare, addiction treatment, criminal justice involvement, and more.

The plaintiffs say drug companies created and should pay for the war against the opioid epidemic. As a result of so many people across the country becoming addicted to opioids many government agencies, including foster care programs, drug rehab clinics, and law enforcement, are simply overwhelmed. In Ohio, for example, half of the children in foster care have parents who are addicted to opioids, and the number of babies born addicted to the drugs grew by almost eight times between 2006 and 2015. A large settlement could pay for more training for first responders and additional rehab programs among other things.

In the end, Moore hopes drug companies will not be let off the hook for their role in this epidemic. “I don’t think they cared enough,” Moore told 60 Minutes. “And if they cared enough, maybe we would not have lost 500,000 lives from this problem. It appalls me.”

Soon, we will know if jurors agree.

Erin Quinn-Kong is based in Austin and writes for GLG, the platform that connects professionals with insight, including medical experts in the area of addiction. Erin is the former editor-in-chief of Austin Monthly, was an editor at Allure and Us Weekly, and has written for a number of publications, including The Alcade, OpenTable.com and Woman’s Day.

Suggested citation: Erin Quinn-Kong, An Introduction to the Opioid Litigation, JURIST – Academic Commentary, Feb. 4, 2019, https://www.jurist.org/commentary/2019/02/an-introduction-to-the-opioid-litigation/

This article was prepared for publication by Tim Zubizarreta, a JURIST Staff Editor. Please direct any questions or comments to him at commentary@jurist.org