Recent Setbacks in the Legal Battle to Hold Opioid Manufacturers and Distributors Accountable

In California and Oklahoma, two recent court decisions dealt severe blows to the viability of a novel legal strategy created by lawyers representing plaintiffs harmed by prescription opioids. The innovative legal approach—suing manufacturers and distributors of prescription opioids for public nuisance or interference of a right common to the public—was first conceived in 2014 and has since become the basis for over 3,000 lawsuits attempting to hold these businesses accountable. While an attractive legal strategy for many reasons, the Orange County State Superior Court in California and the Oklahoma Supreme Court both ruled against the plaintiffs’ arguments.

Specifically, the decisions held that there is not a direct enough connection between false or misleading advertisements made by the defendant pharmaceutical companies. It did not find a strong correlation between resulting issues with opioid addiction and abuse for medically appropriate prescriptions to sufficiently establish liability for public nuisance offenses. These decisions cause concern for other lawsuits across the country based on similar legal theories.

Public nuisance complaints against opioid manufacturers and distributors became a widely adopted legal strategy across the country because of the prevalence of state public nuisance statutes, thus making precedent in one state transferable to others. Additionally, most state public nuisance statutes do not have statutes of limitations. The remedy available to plaintiffs who succeed in proving a public nuisance is abatement; this requires the liable defendants to take corrective action and financially subsidize efforts to avoid future harm.

While these factors make successful public nuisance cases an attractive prospect, they do not solve the problem created by the California and Oklahoma judgments. Each state has its own public nuisance statute, judges, and rules of procedure that will govern the other lawsuits. Still, this result will likely signal to other justices a general skepticism that must be overcome in a successful prescription opioid public nuisance cause of action. Just as the success of the strategy in one case could lead to the success of similar lawsuits around the country, so too could these rejections of the argument ripple across other states.

Further, these victories for pharmaceutical companies will likely strengthen their bargaining power in settlement negotiations as plaintiffs will be more inclined to settle than risk a likely loss in court. Currently, four large pharmaceutical companies are offering a $26 billion settlement if most states agree to the settlement terms. It will be essential to watch different states’ responses to the California and Oklahoma decisions and the four drug companies’ positions as they work towards finalizing the agreement.

Plaintiffs’ lawyers may find alternative strategies and amend their complaints to survive these decisions. Alternatively, there is a chance that other state courts, facing slightly different facts, statutes, and interpretations, may find that the connection between the advertising tactics of the pharmaceutical companies and any resulting drug abuse is less tenuous. Regardless, the necessity for plaintiffs’ attorneys to develop unconventional legal strategies highlights the reality that U.S. legislatures might be better situated to effect substantial change on the opioid epidemic.

This is potentially accomplished by a legislative act that provides more stringent regulation of pharmaceutical advertisements and more visibility of, and accountability for, the prescribing doctors. The theoretical act could limit the positive claims that drug companies can make when selling opioids and require a percentage of the commercials or advertisements to be devoted to a complete disclosure related to the severity of side effects. Such requirements would limit the persuasive power of prescription opioid advertisements and disincentivize pharmaceutical companies from running the ads in the first place. Additionally, the act could establish a civil cause of action that expands the FDA’s “Bad Ad Program.” This would allow consumers who can demonstrate injury because of a false or misleading advertisement to not only stop the ad from running in the future but also receive damages from the company that caused the harm.

The recent court decisions in California and Oklahoma signal a difficult road ahead for the civil litigation movement aimed at more effective prescription opioid regulation.