Last week, the Pennsylvania Counties of Delaware, Lackawanna and Dauphin joined a growing list of municipalities, cities and states which have filed lawsuits or plan to sue the major pharmaceutical manufacturers as part of an effort to fight the opioid epidemic. Part of the basis for these suits is that government entities have paid millions of dollars for police and emergency-related services due to increased drug arrests and overdoses. In addition, these lawsuits allege the major pharmaceutical manufacturers downplayed the addictive nature of pain medications to increase sales and therefore, are to blame for the opioid crisis.
The lawsuits filed against these pharmaceutical companies have been compared to similar suits filed by cities, counties and states against the tobacco industry for misleading the public on the adverse health issues tobacco use had on tobacco users. Those lawsuits led to the largest civil-litigation settlement agreement in 1998. However, the pharmaceutical companies are pushing back due to the fact that opioids pass through various channels from the manufacturer; to the distributors; to the pharmacies and; ultimately must be prescribed by a physician. Therefore, the pharmaceutical companies are arguing that any of these parties can be blamed for the increase in opioid use, not the manufacturer.
Tobacco and opioid lawsuits are not the only industries where government entities have filed suit against manufacturers. Since the early 1980's, over 30 cities and the State of New York have filed lawsuits against gun manufacturers. Similar to the relief sought in the opioid lawsuits, these government entities filed suit to recover the costs of police and emergency medical services due to an increase in gun violence. These lawsuits have been largely unsuccessful and ultimately led to the passage of the Protection of Lawful Commerce Arms Act (PLCAA) in 2005. This Act prevents firearms manufacturers and dealers from being held liable when crimes have been committed with their firearms, unless they have reason to know a gun is intended for use in a crime.
How do the lawsuits against the opioid manufacturers compare to tobacco and gun manufacturers? For now, it would appear that the opioid lawsuits are more akin to the suits brought against the tobacco manufacturers and therefore, have a good chance of being successful. In that regard, one of the common threads is that with tobacco and opioids, there is a strong argument that, even when the product is used for its intended purpose, there is a considerable risk of harm. In other words, smoking can cause cancer and the use of opioids can cause addiction.
More importantly, these lawsuits open the door for other entities which have been financially affected by the opioid crisis (i.e. insurance companies and self-insureds) to file suits to recoup losses. A recent study published on Science Daily indicates the opioid crisis has cost the economy $78.5 billion dollars per year, including criminal justice related costs; loss of productivity to employees; and healthcare and substance abuse costs. Of this, it is estimated that $28 billion has been covered by insurance companies for healthcare and substance abuse, while only $7.7 billion is attributed to criminal justice related costs. Therefore, insurance companies and self-insureds have a bigger stake in the total economic damages caused by the opioid crisis.
For more information please contact Jeffrey M. Seyfried at 717.237.6948 or jseyfried@wglaw.com
Disclaimer: The contents of this post are for informational purposes only, are not legal advice and do not create an attorney-client relationship.