Overview of State Litigation to Combat the Opioid Epidemic

February 22, 2018|2:55 p.m.| ASTHO Staff

As opioid-related deaths continue to increase, state and local governments are directing more resources to healthcare and criminal justice systems to address the epidemic. All branches of state government are developing policies, programmatic interventions, and strategies to respond to this public health crisis. This includes disaster declarations issued by governors’ offices, state legislation, as well as litigation filed by state attorneys general (AGs) and other executive agencies.

In 2012, West Virginia filed suit against several opioid distributors. In 2015, Mississippi filed the first lawsuit against opioid manufacturers. Afterwards, a broad coalition of state AGs began to investigate opioid manufacturers and distributors. In 2017, states began to subpoena and gather information on market practices, supply chains, and pricing strategies for prescription opioids. During that summer and fall, at least 16 additional states filed lawsuits through their AGs and executive agencies.

The lawsuits often allege that pharmaceutical distributors failed to alert state regulators of suspicious opioid purchases and orders as required under federal and state law. Some distributors have reached settlements with the U.S. Department of Justice, as well as states such as Kentucky and West Virginia, on these claims.

The claims against opioid manufacturers often allege that the companies engaged in deceptive marketing practices by exaggerating the benefits of opioids and understating their potent risk for addiction in violation of state consumer protection laws. Other legal theories include false claims, unjust enrichment, fraud, public nuisance, and negligence. There are some differences across state complaints. The complaints name different defendants and combinations of defendants and allege different legal theories.

The lawsuits seek financial remedies to account for the costs of responding to ongoing opioid epidemic. The most common damages are funding for healthcare services and the criminal justice system. In terms of healthcare, most lawsuits seek funding to provide and expand treatment and recovery services. This includes reimbursing Medicaid and other public payors such as worker’s compensation for costs related to treating opioid use disorders. In addition, some states are seeking funding to pay for naloxone to reverse opioid overdoses and train public safety personnel in its use. For criminal justice, many lawsuits seek damages to cover increased prosecution and incarceration costs incurred as a result the opioid epidemic.

The chart below lists recent complaints available online. If you would like to add to this list, please contact K.T. Kramer, ASTHO’s director of state health policy.

State

Date Filed

Complaint

Defendant: distributor, manufacturer or both

Alabama

2/6/2018

State of Alabama v. Purdue Pharma LP et al.

Manufacturer

Alaska

10/30/2017

State of Alaska v. Purdue Pharma L.P. et al.

Manufacturer

Arizona

8/31/2017

State of Arizona v. Insys Therapeutics, Inc et al.

Manufacturer

Delaware

1/9/2018

State of Delaware v. Purdue Pharma L.P. et al.

Both

Kentucky

2/20/2018

 

1/22/2018

 

11/2017

Commonwealth of Kentucky v. Cardinal Health et al.

Commonwealth of Kentucky v. McKesson Corp.

Commonwealth of Kentucky v. Endo Pharmaceutical et al.

Distributor

 

Distributor

 

Manufacturer

Louisiana

9/20/2017

Louisiana Department of Health v. Purdue Pharma L.P. et al. (note: State AG will take over the litigation as of 2/20/2018) 

Manufacturer

Missouri

6/21/2017

State of Missouri v. Purdue Pharma, L.P. et al.

Manufacturer

Montana

11/30/2017

State of Montana v. Purdue Pharma, L.P. et al.

Manufacturer

New Hampshire

8/8/2017

State of New Hampshire v. Purdue Pharma, L.P. et al.

Manufacturer

New Jersey

10/31/2017

Christopher S. Porrino, Attorney General of the State of New Jersey and Sharon M. Joyce, Acting Director of the New Jersey Division of Consumer Affairs v. Purdue Pharma, L.P. et al.

Manufacturer

New Mexico

9/7/2017

State of New Mexico v. Purdue Pharma L.P. et al.

Both

North Carolina

12/21/2017

State of North Carolina v. Insys Therapeutics, Inc.

Manufacturer

Ohio

5/31/2017

State of Ohio v. Purdue Pharma L.P., et al.

Manufacturer

Oklahoma

6/30/2017

State of Oklahoma v. Purdue Pharma L.P., et al.

Manufacturer

South Carolina

8/16/2017

State of South Carolina v. Purdue Pharma L.P., et al.

Manufacturer

Washington

9/27/2017

State of Washington v. Purdue Pharma L.P., et al.

Manufacturer


In addition to lawsuits filed by states, a growing number of tribes, counties, cities, and other jurisdictions are filing suit. At least 200 federal cases were consolidated under the Multijurisdictional Litigation Panel for pretrial rulings and discovery procedures through the Northern District of Ohio. Since then, the court has signaled an interest in the parties reaching a settlement rather than going to trial, stating on Jan. 31, “I don’t think anyone in the country is interested in a whole lot of finger-pointing at this point, and I’m not either. . . . So my objective is to do something meaningful to abate this crisis and to do it in 2018.”

Commentators have compared the situation to the 1990s tobacco cases that led to the Tobacco Master Settlement Agreement (MSA). The MSA resulted in annual distributions to states of approximately 10 billion dollars for the costs of treating tobacco users. While the suits against tobacco companies resulted in a key victory for public health, they also hold some important lessons.

To begin with, this type of litigation takes time and effort. Mississippi was the first state to sue a tobacco company in 1994. The MSA was reached four years later in 1998. Furthermore, reaching an agreement does not necessarily end litigation. The MSA required tobacco companies to issue corrective statements to inform the public of the true dangers of tobacco use. After years of additional litigation, the statements were finally published in 2017. Another lesson is the importance of keeping in mind that the use of MSA settlement funds was largely unrestricted, resulting in some of this funding being used for priorities other than public health and tobacco cessation.

Mike Moore, the former Mississippi AG who led the tobacco litigation and who now consults on opioid litigation, described the ideal opioid and distributor settlement as a “comprehensive, company-funded national program that would make treatment more widely available . . . as well as expand prevention education and force a change in doctors’ prescribing habits.”

Thoughtful litigation is a tool and it requires responsive settlements and decisions that allocate remedies and relief appropriately.