In recent months, there has been intense media attention focused on the makers of opioids who have allegedly flooded the market with these potentially deadly products in the name of profits. However, while the nature of the problem has long been known, the scope of the epidemic was still a mystery. Now, there is data that has quantified the depth of the problem that has become publicly available due to a court order. The federal government has estimated that these manufacturers have put approximately 76 billion pills into circulation, satisfying the markets for both medically necessary usage as well as the black market for addiction-related uses. Opioid manufacturers are now facing legal pressure from both state governments as well as private plaintiffs.
Since Purdue Pharmaceutical introduced OxyContin to the marketplace in the mid-1990s, the use of opioid-based medication has surged. While there are medical benefits to the drugs, there are also harmful uses as well. Opioids have now caused a death toll that measures in the tens of thousands.
Due to the possibility for addiction and overdose, opioids are controlled substances, meaning there are restrictions and requirements placed on their sale. As a result, the Drug Enforcement Administration has a database that tracks every single pill that is manufactured. The DEA will know the path that each pill takes from manufacturer to distributor to the pharmacy. Thus, the DEA can track not only how many of these pills are made, but who manufacturers each pill and where it goes. Now, the public knows which areas received the most opioid pills. The information reveals that some rural areas received enough opioid pills to cover each resident of the city hundreds of times over, even if they were never prescribed the drugs. The data reveals that both Tennessee and Indiana each received over two billion pills each.
This data now puts the scope of the problem into view and offers statistics on the epidemic. Previously, the public could see that the country was flooded with opioids and that people were dying, but did not know exactly how bad the problem was. To the extent that drug manufacturers entered into settlement agreement with governmental entities, the information contained in the settlement agreement was shielded from the public. Further, any evidence and exhibits used in legal cases against the drugmakers was also sealed.
In recent years, several media outlets have fought in court for the right to access documents that could detail the scope of the problem. The DEA information that was released was only put into the public realm because a judge in one of the cases lifted the protective order that kept the database under seal. The DEA had opposed the news outlets’ request, which was taken all the way up to the Sixth Circuit Court of Appeals.
The data that became available covers only a seven-year period. In other words, manufacturers averaged a staggering ten billion pills a year of production during this time. Many of these manufacturers claim that they have since taken additional steps to control the flow and distribution of their products. Wholesalers are pharmacies also believe that they have done all they can to combat the opioid crisis. Nevertheless, the number of deaths associated with opioids peaked long after this period, which ended in 2012.
Currently, there are over 2,000 different local jurisdictions that have filed lawsuits against the drug manufacturers seeking to recover the costs of the opioid epidemic that they have had to bear. Practically every state has filed a lawsuit against these companies along with nearly every major city. These lawsuits are similar to the lawsuits against tobacco companies in the 1990s that resulted in large settlements for state governments. Some drug companies have already settled with various states. For example, Purdue Pharmaceutical entered into a $270 million with Oklahoma which includes a mix of cash, addiction treatment medications and funding for an addiction center. The lawsuits against the drugmakers have been consolidated into a federal case in Ohio. The ongoing viability of the drugmakers is in question due to the sheer amount of the legal liability that they face. This is despite the fact that Purdue has earned roughly $35 billion from sales of OxyContin.
While most of the litigation against opioid makers has been filed thus far by governmental entities, private parties may also be able to sue these companies. In flooding the country with billions of pills that were not advertised as highly addictive and dangerous, these manufacturers may be liable for making an unsafe and fatal product and failing to warn of its dangers. There is a possibility that the marketing claims that have been made by these companies are false, which can further imperil them in a civil suit. There are numerous other types of suits that can be filed against these companies. For example, they could be liable if a driver who was under the influence of opioids injured someone else in a car accident. They could also be found liable for wrongful death if their product is deemed to be defective. In addition, the physician who has improperly prescribed opioids or negligently overprescribed the medication can also be held responsible for medical malpractice. Many of these theories of liability are still to be tested in front of juries, but they are potential arguments to help recover damages caused by these harmful drugs.
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