In N.H. Opioid Lawsuit, Echoes of Past Battles Against Tobacco, Other Industries

Aug 11, 2017

New Hampshire's Attorney General made waves earlier this week when it brought its first lawsuit against a pharmaceutical giant, Purdue, over its alleged role in the state’s opioid crisis. But this is just the latest in a decades-long trend of states taking big industries to court.

Over the last two years, large opioid companies like Purdue have faced lawsuits from all corners of the country: New HampshireOhioMissouri and Mississippi; communities like Everett, Wash., and Waterbury, Conn.; and dozens of other statescities and counties

“They’re all getting at basically the same thing: You knew this was an inappropriate use of these drugs, yet you marketed it aggressively for that use,” says David Logan, a law professor at Roger Williams University who studies this kind of litigation.  

Logan and other legal experts say it’s a playbook that’s been tried lots of times before — with varying levels of success. City and county lawsuits brought against the gun industry in the 1990s and early 2000s didn’t go far, for example, and didn’t do much of anything in the long term to curb gun deaths. 

An onslaught of state lawsuits against tobacco companies, on the other hand, led to a landmark 1998 “master settlement” that forced those companies to change their marketing practices and pay millions of dollars to states for tobacco prevention.

But in New Hampshire and lots of other states, much of that tobacco money is getting diverted to other uses.

“There’s a lot of people who think the global settlement in the tobacco industry litigation wasn’t nearly as effective in combating aspects of tobacco addiction as it should have been,” Logan says.

So what’s the desired outcome in this wave of opioid lawsuits? For one, many of the states and cities want the drug companies to stop the marketing practices that, they say, fueled the addiction crisis.

Even if states were successful in pursuing those claims, University of Kentucky law professor Richard Ausness says that only goes so far in actually addressing the underlying problem. 

“If you say your theory is you lied about the drugs, then the remedy is: force them to quit lying,” Ausness says. “But that doesn’t immediately solve the addiction problem. It’s still going to be out there.”

In 2014, Ausness wrote a law review article evaluating the effectiveness of lawsuits against the opioid industry as a tool for fighting prescription drug abuse — his takeaway, at that time, was that lawsuits alone were unlikely to turn the tide.

New Hampshire’s initial complaint against Purdue doesn’t delve into many specifics about what kind of other payout it wants from the company. It asks for $10,000 for each violation of its consumer protection act. But it also wants the company to “abate the public nuisance its conduct has created.”

“They’re simply saying, as a result of the drug company’s behavior, we the government are now stuck with huge social cost, and it’s not our fault that this happened,” Ausness says.

Depending on how these lawsuits play out, states like New Hampshire could try to recoup costs for emergency services, medical care and other places where taxpayer money has been drained because of the opioid crisis — all costs it alludes to in its legal complaint — though all of that would, again, have to be worked out in court.

But Tim Lytton, who studies health and safety regulations at Georgia State University School of Law, says a victory in the courtroom isn’t the only way to measure the effectiveness of these lawsuits. For one, Lytton says, every lawsuit tells a story.

And in the ones against cigarette and gun companies, or even in the child sex abuse cases against the Catholic Church, the stories told within lawsuits helped to reframe public narratives around broader societal issues.

In some of those examples, Lytton said lawsuits also helped to put public pressure on larger institutions to take more responsibility for problems that were previously blamed on individuals.

“In the case of opioids, what I think that would mean is: Many people think of opioid abuse as a problem essentially of addicts,” Lytton says. “But the lawsuits raise the idea that really opioid abuse is the responsibility of the industry, because of the industry’s marketing and promotional and sales practices.”

Lytton said these lawsuits can have other effects, too, even before they get to trial. They can also force companies to turn over internal documents, like emails or marketing plans, that would shed light on whether or not they knew their products were harmful.

And that’s part of where states and cities might be at an advantage when it comes to taking on the opioid companies from a lot of different angles, in a lot of separate cases, instead of attacking the opioid companies as a unified front.

“When somebody finds something that Purdue wrote or said in 1998, and they find it in a lawsuit in New Hampshire, the chances are it’s going to be in the hands of the lawyers in Ohio and other states within nanoseconds of it being discovered,” Logan, from Roger Williams, said.

It’s worth noting, however, that this isn’t the first time Purdue has faced lawsuits of this kind.

Almost exactly 10 years ago, in fact, Purdue and several of its top executives pled guilty in a federal lawsuit over its marketing practices around OxyContin, the same opioid at the center of many of the lawsuits it faces today. At the time, the company faced allegations that it promoted OxyContin as a safer, less addictive alternative to other painkillers. 

Purdue, for its part, is denying any wrongdoing alleged in the current New Hampshire lawsuit. The company, in a statement provided earlier this week, pointed to its support for abuse-deterrent technology, prescription drug monitoring programs and access to the opioid reversal drug, Naloxone (or Narcan). 

“While we vigorously deny the allegations, we share New Hampshire officials’ concerns about the opioid crisis and we are committed to working collaboratively to find solutions,” the company said. 

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