More and more lawsuits are being filed against pharmaceutical companies for downplaying the addictive effects of opioid painkillers. However, some suggest that the regulatory environment surrounding Big Pharma might preclude success in these cases. This past Wednesday, Ohio joined the list of plaintiffs when the state filed a lawsuit against Purdue Pharma LP, Johnson & Johnson’s Janssen Pharmaceuticals Inc unit, Endo International Plc, Teva Pharmaceutical Industries Ltd’s and Allergan Plc. The state of Ohio hopes to regain funds spent on addiction treatment and opioid prescriptions given out unnecessarily. The pharmaceutical companies have denied the claims made against them.
Ohio’s Opioid Problem
Ohio has been marked by the CDC as being statistically significant with regard to the opioid epidemic, as the death rate in that state increased by 21.5 percent between 2014 and 2015. The problem has gotten so bad that the coroner’s office has been running out room for bodies. And in 2012, 793 million doses of opioids were prescribed. That’s enough to supply each adult and child with 68 pills.
In its lawsuit, the state claims that, in their marketing campaigns, pharmaceutical companies “trivialize the risks of opioids while overstating the benefits of using them for chronic pain.”
More Lawsuits on the Way
Other similar lawsuits have been filed by Mississippi, the city of Chicago and counties in California and New York. And plaintiff lawyers seem to think that many more will come. In fact, some think that the piling up of lawsuits could eventually be comparable to the situation in 1996 when 46 states reached a $206 billion settlement in a suit against tobacco companies.
The only difference might be that tobacco companies weren’t federally regulated at the time – it wasn’t until 2009 that the Food and Drug Administration (FDA) was given authority to regulate that industry. And seeing as how the pharmaceutical industry is regulated by the FDA, it might be more difficult to obtain compensation from companies implicated in the devastation of the opioid epidemic – addiction to prescription pain relievers caused about 20,000 deaths in 2015.
Plaintiff lawyers worry that, moving forward, judges and juries could point to the fact that the FDA approved these drugs and okayed the warning labels indicating the addictive quality of opioids. According to Jodi Avergun, a former chief of staff of the U.S. Drug Enforcement Administration and now a defense lawyer with Cadwalader, Wickersham & Taft, the fact that these drugs have been approved constitutes a “fundamental weakness” in the plaintiffs’ cases.
In fact, a lawsuit filed in 2015 by California’s Santa Clara and Orange counties against several pharmaceutical companies was stopped by a judge who thought the proceedings would negatively impact a relevant study being carried out by the FDA.
According to Sam Quinones, the author of Dreamland: The True Tale of America’s Opiate Epidemic, “What you’re getting now is a lot more legal minds across the country focusing on this, and figuring out how to pay these huge bills.” He continued in his statement to The Atlantic, “Everyone is groping for a legal theory that will work in court.”
Ohio’s Suit Might Prove Effective
Some suggest that Ohio’s lawsuit might have a chance of piercing the seemingly impenetrable hide of Big Pharma. According to analyst Ronny Gal of Bernstein Research, the lawsuit put together by Ohio’s lawyers is “well written and well researched.” Gal highlighted a section regarding babies who were born already addicted to opioids. One part of that section says the following: “Newborns with [neonatal abstinence syndrome] spent approximately 26,000 days in Ohio hospitals in 2014 with health care costs totaling $105 million.” The suit cites the Ohio Maternal Opiate Medical Supports (M.O.M.S) Project.
Moving forward, affected Ohio citizens hope lawyers can effectively argue that Big Pharma convinced “key opinion leaders” of the positive effects of opioid pain relievers while leaving aside its nastier side effects and therefore contributed to the terrible consequences of the opioid epidemic.