“We’re committed to getting to the bottom of a broken system that has fueled the epidemic and taken far too many lives,” wrote New York Attorney General Eric Schneiderman in a press release. “New Yorkers whose families have been torn apart by the [crisis]deserve to know if the industry put its bottom line ahead of patient safety.”
The situation rings eerily familiar.
The presser was held in 2017, and he was talking about opioids. But he very well could’ve been speaking in the 1990s about the tobacco industry, which pumped up annual per capita cigarette consumption to 4,345 in 1963 from just 54 in 1900, according to a report from the Surgeon General and the CDC. That figure had fallen to 2,261 by 1998, the year Big Tobacco and the states settled litigation over the industry’s practices.
If anything, the growth — and the damage — of the opioid epidemic has been even more dramatic. In 2016, the number of overdose deaths in the United States involving both heroin and prescription opioids was five times higher than in 1999, according to the CDC. Every day, emergency departments across America treat more than 1,000 people for misusing prescription opioids, the agency says.
“In both cases the industry hid crucial facts in its possession, resulting in many (millions perhaps in the case of tobacco, thousands in the case of Purdue et al) premature deaths,” wrote Richard Daynard, a law professor at Northeastern University who is an expert on tobacco litigation, in an email to PacerMonitor. And there’s another similarity: Dozens of attorneys general are standing up to a small number of companies.
“In both cases, state AGs sued to recover costs the states had incurred as a result,” Daynard said.
Courts often hold individuals responsible, but it’s a different story when more than three dozen states join together in an investigation, as is the case with opioids—and some say that opioid litigation is taking a page from the playbook of the lawyers who loosened Big Tobacco’s grip on the U.S.
But it was a long road getting there for tobacco. The litigation came in three waves. First, individual suits rolled in starting in the 1950s, mostly on theories of negligence, breach of warranty, and misrepresentation. Fast forward to the 1980s and early 1990s, and the second wave of suits refocused on claims of failure to warn and liability. Then, around 1994, the tide began to turn. Attorneys general banded together, and states began to seek reimbursement from the tobacco industry for costs incurred due to the health effects of smoking—and for fraudulent marketing and targeting children, among other charges. The 46 states and six additional jurisdictions in the case eventually landed a massive settlement with major tobacco manufacturers in 1998 called the Master Settlement Agreement. In it, plaintiffs relinquished their right to sue the tobacco companies in the future on the same charges in exchange for annual payments from the companies, doled out indefinitely to cover taxpayer money spent on tobacco-related healthcare costs.
Now, a similar pattern is unfolding with opioids litigation. In October of last year, Alaska broke with the multistate investigation and sued Purdue Pharma on claims of deceptive marketing. The very next day, New Jersey did the same. In December came Montana. Alabama, where the number of prescriptions grew by half a million to just over 6.5 million between 2012 and 2016, followed, in February. Later the same week, Purdue Pharma announced that it would stop promoting opioids to physicians, and would slice its sales staff in half, according to Reuters.
But the litigation strategy isn’t the only similarity. The language in the complaints strikes a very familiar chord.
“The causes of action in the tobacco suits covered the gamut,” said Daynard. “But they were mostly not put to the test, since all of the cases settled before jury verdicts, and all besides Minnesota settled before juries were even empaneled.”
State of Minnesota, et al. v. Philip Morris Incorporated, et al., 551 N.W.2d 490, Supreme Court of Minnesota (1996), became a landmark suit in tobacco litigation because it uncovered millions of pages of internal documents from the tobacco industry, and it was also the first state lawsuit to go to trial. Now, the case serves as a telling comparison against current opioid litigation.
The case invoked consumer fraud, deceptive trade practices, unjust enrichment and false advertising, among other causes of action. In the recent slew of opioids cases, the causes of action are quite similar—they tend toward unjust enrichment, some degree of fraud and negligence, and public nuisance claims.
The idea of corporate greed is a touchstone marker in the unfurling of litigation in both the Minnesota tobacco case and in the opioids cases. The Ohio opioids suit, which was brought in July 2017, was pointedly critical of the pharmaceutical industry: “The case is about one thing: corporate greed.” The language is reminiscent of that in the Minnesota complaint: “Despite the duration and the severity of the misconduct, the industry has enjoyed virtual immunity because of its economic and political power.”
Ohio had good reason to come out swinging in its complaint, which cited Ohio Department of Health data showing an average of eight people dying every day from opioid-related overdoses and the death rate due to unintentional drug overdoses increasing 642 percent from 2000 to 2015.
The plaintiffs invoked ample language surrounding health of the state’s residents. The Minnesota complaint refers to the effects of the tobacco industry as a “death march,” while the Colorado opioids case, filed in February, referred to a “public health crisis” and an impediment on “the comfortable enjoyment of life.”
Perhaps the most extensive similarities in language, however, are those surrounding consumer fraud and trade practices. From the Minnesota complaint: “…defendants have known for decades from their own internal studies that their products are deadly and addictive. Instead of disclosing this knowledge, these defendants intentionally chose to engage in a unified campaign of deceit and misrepresentation. This course of conduct was intended by the defendants to control and maintain their market, to maximize their profits, and to minimize their legal exposure”
Compare that with the language from the Alabama opioids suit: “Defendants’ marketing efforts were both ubiquitous and highly persuasive; their deceptive messages tainted virtually every source on which doctors could rely for information and prevented doctors from making informed treatment decisions.”
For good measure, throw in the language from the Colorado suit: “Defendants false and misleading statements deceived doctors and patients about the risks and benefits of opioids and convinced them that opioids were not only appropriate but necessary for treatment of chronic pain,” and “each Defendant began a sophisticated marketing and distribution scheme premised on deception to persuade doctors and patients that opioids can and should be used to treat chronic pain.”
At the end of the day, will it work—again? Counter-arguments have been made. Some say that in the case of tobacco, people were using the product as instructed, and they got sick. But with opioids, they’re not using the product as “instructed.” Another is that there are many different parties that could be blamed for opioid addiction—pharmaceutical companies, doctors who over-prescribe, and an FDA overly eager to approve drugs.
“Some courts have bought these arguments in individual cases, but of course courts and juries bought lots of defense arguments over the years in individual tobacco cases,” said Daynard, the tobacco expert. “I think if you sell a product that you know is likely to be abused, and lie about its abuse potential, you should not be able to prevail by saying ‘OMG, he abused it!’ And you can always blame the government… So I don’t think these should be good defenses, but that doesn’t mean they won’t persuade some court or jury.”
