Washington Lawyer - January/February 2020 - 15

FEATURE

he prescription opioid
epidemic has killed at
least 300,000 Americans
since 2000, a death
toll higher than all U.S.
military casualties in
the Vietnam and Iraq
wars combined, with
plenty of blame being passed
around for the surge in overdose
deaths and addictions.

In fact, the cast of characters being accused
of some level of responsibility includes federal
agencies, doctors, drugmakers, distributors,
retailers, medical associations, and even freetrade policies that have caused job losses and
resulting despair.
One inevitable result of the ever-expanding
debate about what kind of role these parties
might have played in the crisis has been the
waves of lawsuits. A proceeding at the federal
level has been consolidated into one of the
largest bellwether trials in American history,
which will serve as an indicator of what might
happen next. In fact, what has been playing out
in Cleveland, Ohio's district court could redefine
mass tort lawsuits, multidistrict litigation, and
the role of courts in future lawsuits. (Note,
however, that as with any fast-changing story,
the latest developments in the lawsuits may
not have been reported as of press time.)
On October 21, hours before the trial was to
begin, three major drug distributors and an
opioid manufacturer announced a $260 million
settlement with the two Ohio counties in the
bellwether case. Lawyers for the plaintiffs said
they hoped that the money, which would go
to cash payouts as well as funding for addiction
treatment, would serve as a benchmark for
future settlements and even a national resolution. In fact, four state attorneys general
announced that they were also close to
reaching a tentative settlement agreement.
Other companies, including drugmakers Johnson
& Johnson, Mallinckrodt Pharmaceuticals, and
Purdue Pharma, have already reached settlement
agreements with the counties.

TAKING A CUE FROM BIG TOBACCO

Photo: iStock

Unlike the tobacco master settlement of 1998,
which involved the attorneys general of 46 states
and some of the largest U.S. tobacco companies,
opioid litigation introduces a more nuanced
dilemma. By the late 20th century, the health
problems caused by tobacco products were well
established, with no credible argument being
made that cigarettes offered any health benefits.
In contrast, because pain management is a real
problem, the medical community has long
argued that prescription opioids, approved by
the U.S. Food and Drug Administration, are sometimes the only way for patients to manage pain.

David Douglass, managing partner at Sheppard,
Mullin, Richter & Hampton LLP in Washington,
D.C., says doctors and the general public at
first believed that opioids were non-addicting
"miracle painkillers." But as the number of
patients becoming addicted to opioids rose
in the last 25 years, there was another unintended effect: a backlash against using opioids
at all. When Douglass's own mother needed
treatment for nerve damage, she balked
at taking prescription opioids for fear of
becoming addicted.
"But her doctor said this is a chronic problem,"
Douglass says. "Suppose we treat [opioids] like
heroin and ban them - what about all the
people who need pain treatment?"
The federal Drug Enforcement Administration
(DEA) has noted that undertreatment of pain
is a large problem, and that opioids are often
the most effective way to treat chronic pain.
Although the statement, made in conjunction
with 21 health organizations, dates back to 2001,
it is still posted on the DEA website.
Joseph D. Piorkowski Jr., a District-based physician
and attorney, says that many doctors are taking a
"fresh look" at pain management guidelines and
"reevaluating what the appropriate standards of
care should be for prescribing opioids," especially
in terms of dose and length of treatment.
Meanwhile, the DEA has come under some criticism following a September 2019 report by the
U.S. Department of Justice's Office of the Inspector
General that revealed the DEA approved the manufacturing of increasing numbers of opioids from
2003 to 2013, even as the number of opioid-related
overdose deaths increased.
So while opiates bring up a new set of complications, there is one area in which opioid litigation
is taking a cue from the massive tobacco settlement. Before the master settlement, individual
smokers who sued the tobacco companies were
never successful, says Peter Meyers, emeritus
professor of law at George Washington
University (GW).
"There were so many defenses that the companies could bring: if the smoker caused it himself,
or that they warned you on the package,"
Meyers notes. Therefore the companies, with
deep pockets, could take on individual smokers
forever. "No individual smoker ever got a penny."

JANUARY/FEBRUARY 2020

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Washington Lawyer - January/February 2020

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