Julie Dostal '19
The U.S. population accounts for 80 percent of opioids consumed globally. The continued growth in American opioid use and abuse has led to a staggering increase in opioid overdoses. In 2015, opioids were involved in the overdose deaths of 33,091 people.1 Drug overdoses now kill more people than cars and handguns combined.2 States experiencing the toll of the human loss, healthcare costs, and enforcements costs of the epidemic formed a broad coalition to investigate what role manufacturers may have played in contributing to the opioid epidemic. State attorneys general in forty-one states have served major opioid manufacturers and distributors with subpoenas seeking information concerning marketing, sales, and distribution of prescription opioids.3
On September 19, 2018, New York Attorney General Eric Schneiderman announced a move by the coalition to expand its investigations into the nationwide opioid epidemic. The forty-one-state coalition is now pooling resources to address the most pressing public health issue in decades. Attorney General Schneiderman’s state has not been immune to the effects of the opioid epidemic; the crisis contributed to 2,754 deaths in New York State in 2015, a number that has quadrupled since 1999.4 Opioids accounted for a staggering 41 percent of deaths in Sullivan County, 37 percent in Erie County, and 32 percent in Nassau County.5
Since he entered office, Schneiderman has launched a multi-step strategy to address the escalating health emergency in New York. He stated at a press conference announcing the action of the coalition: “We’re committed to getting to the bottom of broken system that has fueled the epidemic and taken far too many lives.”6 Schneiderman has attempted to both ease the process of rehabilitation for opioid addicts and bring suit against actors supplying the sustenance of the epidemic: pills. His reforms include settling with major insurers to remove barriers to life-saving treatments for opioid use disorder, creating an internet tracking system so relevant prescription history is known to doctors, and obtaining an agreement for reduced-priced Naloxone, a life-saving overdose reversal drug.7 Schneiderman has also used the prosecutorial capacity of his office to convict ten licensed pill prescribers as “pill mills,” as well as cracking down on illicit drug trafficking networks.8
Attorneys general from other states experiencing the shocking impacts of the epidemic also initiated dramatic efforts to mitigate the impacts of the crisis, starting with legal suppliers of opioids. In the past year, at least twenty-five states, cities, and counties have filed civil cases against manufacturers, distributors, and large drugstore chains that help supply $13 billion-a-year industry.9 The coalition filed suit against five major prescription opioid manufacturers and three major distributors. The strategy echoes the effort against major tobacco companies in the 1990s in attempts to lessen the increasing costs of the public health crisis. Ohio Attorney General Mike DeWine brought suit against five drug manufacturers stating, “If they’re not going to do it voluntarily, we’re going to drag them to the table and make them.”10 These suits will likely be difficult to win.
If these companies’ representation strategy for their upcoming suits mirrors that of past tobacco litigators, the companies will settle rather than try and defend themselves against dozens, perhaps hundreds, of claims.11 Tobacco companies drove up the cost of litigation until defendants finally settled. In the 1990s, forty-six attorneys general collaborated to sue tobacco companies, reaching a settlement of over $200 billion.12 Manufacturers, distributors, and pharmacy chains are expected to argue that they cannot be held liable for what occurs when prescription pain pills travel down the supply chain. Once the pill leaves the distributor, a great number of bad actors may intervene. Pills mills, doctors who over prescribe, and patients who give or sell their prescribed medication others, all may constitute breaks in the causation chain aiming to establish responsibility for opioid manufactures and suppliers. In a blow to this defense, the D.C. Court of Appeals rejected arguments from a drug distributor that would have undermined the DA’s ability to hold companies responsible for pain pills that are directed to the black market.13
While past precedent may favor the opioid suppliers, prosecutors at all levels of state and local governments are pursuing lawsuits and policy reform to counteract the irresponsible distribution of opioids to the American people. Two congressional panels, the Senate Homeland Security and Governmental Affairs Committee and the House Energy and Commerce Committee, are also investigating the practices of the industry, much to the dismay of the massive pharmaceutical lobby.
As prosecutors and policymakers all over the country work to reform and pursue a more effective strategy to slow the opioid epidemic, responsibility will also fall on suppliers. Pharmaceutical companies and drug distributors alike publically condemned the current status of opioid use and abuse in the United States. Teva Pharmaceuticals, a company that reported $327 million in earnings last year, released a statement asserting the company is “committed to working with the healthcare community, regulators, and public officials to collaboratively find solutions.” Proactive work in the private sector will remain imperative in efforts to deescalate the crisis. Hopefully, reform in both the public and private sector will break the upward trend in opioid related deaths and costs in 2017.
1 CNN Library, Opioid Crisis Fast Facts, Edited 09.18.2017. http://www.cnn.com/2017/09/18/health/opioid-crisis-fast-facts/index.html
3 Kounang, Nadia, 41 State Attorneys General Subpoena Opioid Manufacturers, 09.20.2017. http://www.cnn.com/2017/09/19/health/state-ag-investigation-opioids-subpoenas/index.html?sr=twCNN091917state-ag-investigation-opioids-subpoenas0528PMStoryGal
4 A.G. Schneiderman Office Press Release, Bipartisan Coalition of AGs Expand Multistate Invetsigation into the Opioid Crisis, 09.19.2017. https://ag.ny.gov/press-release/ag-schneiderman-bipartisan-coalition-ags-expand-multistate-investigation-opioid-crisis
9 Higman, Scott and Lenny Bernstein, Drug makers and Distributors Face a Barrage of Lawsuits Over Opioid Epidemic, Washington Post, 07.04.2017. https://www.washingtonpost.com/investigations/drugmakers-and-distributors-face-barrage-of-lawsuits-over-opioid-epidemic/2017/07/04/3fc33c64-5794-11e7-b38e35fd8e0c288f_story.html?utm_term=.36efbd0ca49a