At this point in the litigation, it is unclear whether national courts will ultimately agree to broaden the definition of public nuisance to include opioid addiction, or whether they will refuse, allowing companies to opt out. There is a good chance that the matter will be decided by the Supreme Court, which, given the makeup of the court, would not bode well for the plaintiffs.
For aficionados of high stakes litigation, this 3D legal chess game can be quite exciting. But how should others think about this kind of pursuit? Lawyers for the plaintiffs say they are stepping in to right the wrongs because all too often the government will not – and because there is no other way to get compensation for the victims. But critics argue that using class action lawsuits is far from an ideal way to achieve justice. On the one hand, they say, potential multi-million dollar fees are too often the primary motivation for lawyers. On the other hand, the results are often uneven; one victim can rake in millions from a court victory, while another gets nothing when another court comes to a different conclusion. Sometimes companies that have done bad things get away with it. Other times, companies pay tens of millions of dollars in damages even though the evidence of wrongdoing is extremely thin.
“Class actions are not useful instruments for redistributing income,” said Ted Marmor, retired public policy professor at Yale who has served as an expert witness for plaintiffs and defendants. “Often these are regulatory failures more than business failures. “
A few examples: Few would dispute that BP’s $ 20 billion settlement with the Justice Department for its role in the Deepwater Horizon oil spill was justified. But what about the 2007 Vioxx case, in which Merck paid nearly $ 5 billion to settle lawsuits alleging that the pain medication Vioxx, a so-called Cox-2 inhibitor, caused heart attacks in tens of thousands of users? Still, Pfizer, which marketed a Cox-2 inhibitor called Celebrex, continued to sell the drug, although the Food and Drug Administration asked the company to include a warning label stating that the drug “may cause an increased risk “of heart failure. (Years later, a clinical trial concluded that Celebrex was no more risky than ibuprofen or naproxen.)
Then there are the tobacco lawsuits of the mid-1990s. In these cases, attorneys for state-hired plaintiffs sued the big tobacco companies for hiding the dangers of smoking and for contributing to health problems. that states had to pay. In 1998, the tobacco companies were content with an astonishing amount of money – at least $ 246 billion over 25 years. The result? The money, which was supposed to be used for anti-smoking programs, is instead used by most states to fill unrelated budget gaps. Meanwhile, tobacco companies are still manufacturing a product that kills some 480,000 Americans each year, according to the Centers for Disease Control and Prevention. And the plaintiffs’ lawyers who brought the case on behalf of the states have become exceptionally wealthy; in Mississippi, Richard Scruggs’ firm alone received $ 340 million in fees.
Critics of the opioid litigation say it illustrates all of the problems with using lawsuits to solve big social problems. First, resorting to a new legal theory means that there is no guarantee that plaintiffs will get a penny, let alone millions. Second, even if companies end up paying billions, they will remain relatively unscathed. And opioids will continue to be legally prescribed drugs. On the other hand, if the complainants lose, all of that time, effort and money will be wasted.
There is no doubt that bad deeds must have taken place to create the opioid crisis. Manufacturers like Purdue Pharma have had to play down the addictive property of OxyContin. Distributors like Cardinal Health and McKesson have had to flood communities with pills. Pharmacies were to sell drugs to drug addicts. But the government also played an important role in approving opioids and then looking away as they were over-prescribed and abused.