The Current State of Opioid Litigation

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Opioid litigation began around the turn of the century and mostly involved unsuccessful lawsuits by addicts against the manufacturers of prescription opioids. The landscape began to change several years ago when a number of state and local governments filed lawsuits against opioid drug manufacturers, seeking damages and other relief for the social and economic consequences of widespread opioid addiction in their territory. Since then, hundreds of government entities (hereinafter referred to as "government plaintiffs") have sued the manufacturers, distributors, prescribers, retail sellers, corporate officers and physician promoters of opioid products (hereinafter referred to as "defendants"). When I began working on this Article in the fall of 2017, I expected that the opioid cases would resemble the government lawsuits of the 1990s against the firearms and lead-based industry. Consequently, my research focused on the strength of the liability theories and defenses that the parties would invoke as these cases proceeded through the courts. All of this changed in December of 2017, when the Judicial Panel on Multidistrict Litigation (JPML) appointed Judge Dan Polster to hear all of the lawsuits pending in federal courts which involved local government plaintiffs. A federal statute authorizes the JPML to consolidate cases and transfer them to a single federal district court in order to conduct discovery and rule on certain pretrial motions. In theory, these cases will be returned to the transferor court at the conclusion of pretrial proceedings. However, it is matter of common knowledge that most cases that are consolidated in this fashion are ultimately settled. Indeed, Judge Polster has made no secret of his desire to have the parties reach a global settlement in this case.

Although it is possible-and even likely that most of these opioid cases will be settled, it is still necessary to consider the relative strength of the liability theories and defenses available to the respective parties. This information is relevant for the following reasons: First, some plaintiffs may opt out of the proposed settlement and elect to take their cases to trial. Second, at least some cases will be litigated in bellwether trials in order to provide the other parties with information about the value of their cases. Third, the strength or weakness of the plaintiffs' cases will have a significant impact on the size of any global settlement that might be reached. And finally, the strength of liability theories and defenses of individual litigants will affect how the settlement funds are allocated among them. For these reasons, it may be useful to evaluate these various claims and defenses even if an eventual global settlement is likely. In this Article, I will consider whether the defendants can successfully resist the plaintiffs' claims even if the plaintiffs' narrative is substantially true. Consequently, it will examine both the plaintiffs' liability theories and any defenses or limitations on liability that may be available to the defendants. Part II of the Article discusses some of the liability theories that plaintiffs have relied upon to support their claims against the defendants. These include public nuisance, negligence, fraudulent misrepresentation, violation of statute, unjust enrichment, and civil conspiracy. Part III identifies a number of defenses and doctrines that potentially limit liability, including statutes of limitation, cause-in-fact, duty, proximate cause, shifting responsibility, restrictions on recovery for purely economic losses, regulatory compliance and scienter. The Article concludes by briefly considering a number of possible outcomes to the current opioid litigation.

Original languageAmerican English
Pages (from-to)565-610
JournalSouth Carolina Law Review
Issue number3
StatePublished - Apr 1 2019


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