1. GOVERNMENT OPIOID LITIGATION: THE EXTENT OF LIABILITY.
- Author
-
Haffajee, Rebecca L., Kilmer, Beau, and Helland, Eric
- Subjects
TORT theory ,OPIOID epidemic ,OPIOID abuse ,CAUSES of action ,CIVIL procedure ,ACTIONS & defenses (Law) - Abstract
Government opioid litigation, which seeks to hold suppliers of opioid analgesic medications accountable for the devastating harms of the opioid crisis that has now claimed over half a million lives, dates back to the early 2000s. The arc of the litigation has largely mimicked that of tobacco, in which individual private tort claims have mostly been replaced by aggregate litigation. However, opioid litigation is unique in many regards, including in the number of cases, diversity of parties and causes of action alleged, and broad scope of liability asserted by plaintiffs. Over 3,300 civil opioid cases have been filed to date, predominantly by state, local and tribal governments. Following a landmark $465 million judgment against Johnson & Johnson in Oklahoma and recent progress in settlement negotiations in the federal multi-district litigation, excitement is building about the prospects of settlements and verdicts worth tens of billions of dollars. Yet the sprawling and all-encompassing nature of the litigation--deriving from not just nonmedical uses of prescription opioids but also from illegally produced opioids (including heroin and synthetic opioids like fentanyl) not supplied by opioid companies--raises new questions. In this article, we trace the evolution of the current opioid crisis across products and leverage this evidence to analyze the extent of defendant liability under commonly alleged causes of action by governments: negligence, RICO, public nuisance and unjust enrichment. We conclude that extending liability to population harms attributable to illegally manufactured and distributed opioids faces challenges under dominant theories and existing evidence. Nevertheless, the scale of harms related to prescription opioid misuse that can potentially be established under prevalent claims remains substantial. The extent of liability ultimately established will be important not only to case outcomes and potential relief afforded in the ongoing opioid litigation, but also in establishing precedent for future litigation relating to products dangerous to the public's health. [ABSTRACT FROM AUTHOR]
- Published
- 2020