Michelle L. Richards, Pills, Public Nuisance, and Parens Patriae: Questioning the Propriety of the Posture of the Opioid Litigation54 U. Rich. L. Rev. 405 (2020).

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The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The most current and active litigation is that which is pursued by state attorneys general in both federal and state courts to recover monies expended in their respective jurisdictions in response to the opioid epidemic. Additionally, and to a greater extent, individual municipalities, including cities and counties and even tribes like the Cherokee Nation, have filed similar independent actions against drug manufacturers, distributors, and pharmacies. In 2018, more than 400 of the cases filed in courts throughout the United States by individual states, local governments, individuals, and other nongovernmental entities against drug manufacturers, distributors, and pharmacies were consolidated and transferred for pre-trial coordination to the Northern District of Ohio by the Judicial Panel on Multidistrict Litigation under the multi-district litigation (“MDL”) process set forth in 28 U.S.C. § 1407. Since that time, an additional 1500 parties have been added to this consolidated litigation, and there are approximately 330 opioid-related cases pending in various state courts, including fifty-five lawsuits filed by state attorneys general. In fact, in April 2019, plaintiffs’ expert witnesses provided reports that estimated it will cost more than $480 billion to “fix” the crisis.

One clear conclusion that can be drawn from even a cursory review of the nature of the litigation that has arisen over the last twenty years is that nearly every facet of the community, from individuals and families to government entities and corporations, has been affected by the opioid crisis. Another point that cannot be denied is that the prescription drug industry, including manufacturers, distributors, and pharmacies, played a significantly culpable role in allowing the crisis to develop into its current magnitude. However, what is also clear is that many, many others played supporting roles in this regard, including, but not limited to, individuals, friends; families; governments, both federal and state; licensing boards; and physicians.

So, how can litigation possibly sort through this massive morass of players, and will it really result in any sort of meritorious resolution? Some believe that the “how” is a recipe that combines, in part, parens patriae standing and common law public nuisance claims. However, based on a historical review of the mass tort cases that have used both parens patriae standing and public nuisance claims, it is unlikely that the opioid litigation will really benefit anyone or anything other than the lawyers who represent parties on both sides of the proverbial “v.” Most concerning is that opioid courts have been more interested in orchestrating a mass settlement than evaluating the propriety of the posture of the litigation itself. For example, on September 11, 2019, Judge Dan Polster, the judge assigned to handle the massive opioid MDL, certified a “first-of-its-kind” negotiating class to promote global settlements between local municipalities, including cities and counties, and the numerous defendants in the MDL, which include drug manufacturers, distributors, and sellers.

This is not the first time that litigation has played a role in attempting to resolve a public health crisis. When the doctrine of parens patriae and public nuisance claims are invoked by the states and utilized in mass tort litigation, the matters typically resolve quickly, suggesting perhaps that these two doctrines are beneficial to both sides in matters of complex tort liability. For example, the litigation against the tobacco industry in the 1990s has been referred to as “the most salient example of a high-profile litigation effort that after settlement yielded vast sums.” However, post-Big Tobacco, many strongly believe that the tobacco litigation actually did not do much to change the behavior of the general public and the tobacco industry itself. And, perhaps most importantly, there is significant doubt as to whether that litigation actually improved the public health of the country. Regardless, since the litigation against Big Tobacco, the combination of parens patriae standing and public nuisance claims has been used more frequently to address other public health concerns including guns, lead paint exposure, and, currently, opioids.

Although many comparisons have been made between the Big Tobacco and opioid litigation to both justify and predict the ultimate outcome of the opioid litigation, there are significant differences between the two that should provide some impetus for courts to consider whether the continued use of parens patriae standing and public nuisance claims is justified in these types of matters. In fact, as compared to most other mass tort cases that have utilized a combination of parens patriae standing and public nuisance claims since Big Tobacco, the fact that the product involved in the opioid litigation is a legitimate and beneficial prescription drug should signal to the courts that the propriety of the procedural posture of the case deserves some consideration. Further, there are complex causation issues in opioid cases that did not exist in the Big Tobacco litigation. Finally, it is important to acknowledge that there continue to be serious concerns post-tobacco litigation that the settlement reached under the Master Settlement Agreement (“MSA”) did not achieve the goals of tort litigation because the settlement monies were rarely, if ever, used to assist those who were most affected by tobacco use; instead, lawyers took a large chunk of the pot, and states often spent the money for other needs.

So far, some of the settlements reached in the opioid cases urgently point toward a need for judicial oversight over the manner in which standing is asserted and claims are pled. For example, in one of the opioid litigation cases that has already resolved, a significant portion of the money “recovered” by the governmental entities has not been allocated to opioid-related expenses.[14] In another case, Oklahoma’s Attorney General reached a $270 million settlement with one of the opioid manufacturers, in which the monies would be used to fund addiction research and treatment in Oklahoma and to pay legal fees to the private counsel retained by the state.[15] However, because a large portion of the damages claimed in the litigation were Medicaid payments made to Oklahoma citizens for healthcare costs allegedly attributable to opioid use, the federal government has now demanded that Oklahoma reimburse it for a portion of the federal contribution toward those Medicaid payments, which amounted to sixty-two percent of the costs of Oklahoma’s $5 billion Medicaid program in 2019.[16] As the terms of the settlement only provided for the costs of addiction research and legal fees, it is unclear as to how Oklahoma will address that reimbursement demand. Finally, there is some indication that these settlements are actually creating tax incentives for the opioid defendants as a portion of the settlement may be classified as “restitution,” for which a deduction is provided in tax law for “damage or harm which was or may be caused by the violation of any law or the potential violation of any law.”[17]

In light of the differences between the opioid and Big Tobacco litigation and the post hoc view of the resolution of the Big Tobacco and other mass tort litigation, this Article cautions against the use of parens patriae standing and public nuisance claims to achieve a mass settlement without first examining whether the use of those tools will truly lead to a resolution that fulfills the goals of tort litigation—namely, to define acceptable conduct in society, to direct compensation to victims of prohibited conduct, and to deter others from acting in a similar fashion.

Part I of this Article provides an overview of the parens patriae doctrine and the expansive role it has played in mass tort litigation. Part II discusses public nuisance claims and how they have evolved into an attractive tool for attorneys seeking reimbursement for expenditures made in relation to respective underlying tort claims. Part III examines, more specifically, the Big Tobacco litigation and evaluates resulting consequences. Part IV of this Article introduces the history of the opioid crisis and the litigation that has flowed from it. Finally, Part V compares the use of parens patriae and public nuisance claims in the opioid litigation to the Big Tobacco litigation and encourages the courts to consider the propriety of the use of those tools in the opioid crisis.

 

* Assistant Professor of Law, University of Detroit Mercy School of Law, J.D., 1994, University of Detroit Mercy School of Law; B.A., 1991, Michigan State University.  The author gratefully acknowledges the support of Detroit Mercy Law colleagues Professor Julia Belian, mentor Professor Howard Abrams, and research assistant Aaron Pattison (2020). Many thanks also to Allison Bohan and the staff at University of Richmond Law Review.

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