Documente Academic
Documente Profesional
Documente Cultură
Paul L. Keenan*
INTRODUCTION
I
n 2016, more than 42,000 Americans died from opioid-related
overdoses, including overdoses from prescription painkillers, heroin,
fentanyl, and other synthetic opioids.1 Between 1999 and 2016, more
than 600,000 people died from drug overdoses, a majority of which were
opioid-related.2 As it stands now, approximately 115 Americans die each
day from opioid overdoses.3 And in 2012, physicians wrote more than 259
million prescriptions for opioid-based pain killers—more than enough to
give every American adult their own bottle of pills.4
The flood of prescription painkillers has affected many communities
across the country.5 Although the crisis is widespread, it has hit some
communities harder than others.6 For example, between 2006 and 2016, two
pharmaceutical wholesalers shipped nearly twenty-one million
69
70 New England Law Review [Vol. 52 | 1
7 Eric Eyre, Drug Firms Shipped 20.8M Pain Pills to WV Town with 2,900 People, CHARLESTON
2018), https://perma.cc/Y5GF-NTLJ.
9 See, e.g., Samantha Fenlon, 14 RI Communities Join Suit Against Opioid Drug Manufacturers
and Distributors, ABC 6 NEWS (Jan. 29, 2018), https://perma.cc/G5X9-NWJK; Brendan Deady &
Daniel Medwed, Boston May Seek to Sue Pharmaceutical Companies for Opioid Crisis, WGBH (Jan.
30, 2018), https://perma.cc/FNJ7-GH2A; Michael Levenson, Quincy Plans to Sue Big Drug
Makers Over Opioid Crisis, BOS. GLOBE (Nov. 1, 2017), https://perma.cc/WM54-AF44.
10 Yuki Noguchi, 41 States to Investigate Pharmaceutical Companies Over Opioids, NPR (Sept.
13 Alana Semuels, Are Pharmaceutical Companies to Blame for the Opioid Epidemic?, THE
I. Background
16 Id.
17 See id.
18 See Daniel McGraw, New Plan to Fight the Opioid Epidemic: Sue the Hell out of Big Pharma
abuse ebbed and flowed in the United States. 22 Following the Civil War,
many veterans were addicted to opioids after being treated with
morphine.23 In the early twentieth century, the federal government sought
to tamp down the proliferation of opium, heroin, and other poppy-based
drugs.24 Following World War II, synthetic opioids entered the market.25
But because of the risk of addiction and dependence, many physicians
remained reluctant to prescribe them.26
This all changed in the 1980s, however, when “an 11-line letter printed
in the New England Journal of Medicine in January 1980 pushed back on
the popular thought that using opioids to treat chronic pain was risky.”27
The authors of the letter, two researchers from Boston University Medical
Center, referenced their analysis of 11,882 hospitalized patients who were
treated with narcotics in a clinical setting, writing that “the development of
addiction is rare in medical patients with no history of addiction.”28 Drug
manufacturers cited this letter and other questionable studies repeatedly,
and their findings were distorted and used as evidence that addiction was
rare in all patients treated with opioids.29
In 1996, Purdue Pharma (“Purdue”) began selling OxyContin and with
it, launched a marketing offensive.30 Purdue collected and used
prescription data to target primary care physicians—many of whom had
no experience in treating chronic pain—and hosted dozens of conferences
aimed at influencing their prescription practices.31 Purdue targeted
22 See Sonia Moghe, Opioid History: From Wonder Drug to Abuse Epidemic, CNN (Oct. 14,
2016), https://perma.cc/F27D-SDK2.
23 Id.
25 James Nevius, The Strange History of Opiates in America: From Morphine for Kids to Heroin
Health Tragedy, 99 AM. J. PUB. HEALTH 221, 221 (2009), available at https://perma.cc/RRW9-
FS6D; Moghe, supra note 22.
32 Van Zee, supra note 31, at 222.
33 Andrew Cass, How Aggressive Tactics by the Makers of OxyContin Helped Create a Crisis,
NEWS HERALD (Feb. 16, 2017), https://perma.cc/9PFV-KZSK.
34 Barry Meier, In Guilty Plea, OxyContin Maker to Pay $600 Million, N.Y. TIMES (May 10,
2007), https://perma.cc/5ULD-5HTT.
35 Id; see also Barry Meier, Origins of an Epidemic: Purdue Pharma Knew Its Opioids Were
Widely Abused, N.Y. TIMES (May 29, 2018), https://perma.cc/S7PT-7HTG (discussing a
Department of Justice Report that revealed that “federal prosecutors investigating the
company found that Purdue Pharma knew about ‘significant’ abuse of OxyContin in the first
years after the drug’s introduction in 1996 and concealed that information”).
36 See Christopher Glazek, The Secretive Family Making Billions From the Opioid Crisis,
ESQUIRE (Oct. 17, 2017, 10:12 AM EST), https://perma.cc/GN6Q-J5NU.
37 See Matt Fair, Philly DA Accuses Drugmakers of Deceptive Opioid Marketing, LAW360 (Feb.
2, 2018), https://perma.cc/7M7K-N5KX.
38 Bill Whitaker, Ex-DEA Agent: Opioid Crisis Fueled by Drug Industry and Congress, CBS
the country, required that medical facilities examine patients for pain and
pushed for providers to recognize pain as “the fifth vital sign.”40 Although
the Commission did not market opioids explicitly, it distributed marketing
materials sponsored by pharmaceutical companies, which minimized any
connection between opioids and addiction.41 The Commission’s standards
remained in place well into 2009.42
As state and federal regulation began to increase, opioid manufacturers
began making tamper-resistant versions of the medications—but the
damage was already done.43 Some states limited patient access to opioid
medications and many stomped out “pill mill” operations, causing many
opioid users to start using heroin and other street drugs. 44 Studies suggest
that prescription opioid abuse rates have declined since 2010—the year
Purdue reformulated OxyContin to include abuse-deterrent qualities.45 The
change coincides with a rise in the use of heroin and black-market
synthetic opioids like fentanyl, a painkiller which is fifty to 100 times more
powerful than morphine and typically only used in clinical settings.46
Sophisticated cartels and traffickers use fentanyl sourced from China or
Mexico to create counterfeit pain pills or mix it into heroin to increase its
potency and, in turn, its deadly effects.47
This crisis has affected communities around the nation—big and small,
rich and poor, urban and rural, white and black. 48 The root of the problem,
however, is complicated, and drug manufacturers are not the only ones at
fault.49 Pharmaceutical manufacturers such as Purdue, Endo International,
40 Max Blau, ‘This is Just the Beginning’: Scope of Opioid Lawsuits Widens to Include Hospital
Accreditor, STAT (Nov. 7, 2017), https://perma.cc/QW4L-MLRH; see also Moghe, supra note 22.
41 Moghe, supra note 22.
42 Moghe, supra note 22.
43 Moghe, supra note 22.
44 See Christopher Moraff, Feds’ Pill Crackdown Drives Pain Patients to Heroin, THE DAILY
https://perma.cc/CJ8C-3TVQ.
48 See, e.g., Eyre, supra note 7 (describing how drug distributors flooded small towns in
West Virginia with prescription painkillers between 2007 and 2012); Julie Bosman, Inside a
Killer Drug Epidemic: A Look at America’s Opioid Crisis, N.Y. TIMES (Jan. 6, 2017),
https://perma.cc/9VPM-UNAC (describing stories of addiction from seven locations around
the country).
49 See Neil Howe, America’s Opioid Crisis: A Nation Hooked, FORBES (Nov. 30, 2017),
https://perma.cc/TCW8-5SFY.
2017] Death by 1000 Lawsuits 75
62 Id.
63 Rebecca L. Haffajee & Michelle M. Mello, Drug Companies’ Liability for the Opioid
Epidemic, 377 NEW ENG. J. MED. 2301, 2304–05 (2017), available at https://perma.cc/9ERB-2Q2L.
64 Higham & Bernstein, supra note 2; See Sari Horwitz & Scott Higham, DEA Launches New
Crackdown on Pharmacies and Opioid Over-Prescribers, WASH. POST (Jan. 30, 2017),
https://perma.cc/D2TN-W33W.
65 Haffajee & Mello, supra note 63, at 2304.
68 Charles Toutant, Opioid Suits by Cities Begin to Catch on in New Jersey, N.J. LAW JOURNAL
(Sept. 25, 2017), https://perma.cc/Z8DR-UGT7; Haffajee & Mello, supra note 63, at 2304.
69 See Jo Martin, County Lawsuits on Opioids Reminiscent of Tobacco Lawsuits, MD. REPORTER
(Feb. 5, 2018), https://perma.cc/E8C8-5KM9; See also Nicole Dotzenrod, Fourteen Cities, Towns
Join Lawsuit Against Drug Companies in Opioid Crisis, VALLEY BREEZE (Jan. 23, 2018),
https://perma.cc/B38V-44HD; Mary C. Serreze, Read the Lawsuit: Greenfield Sues Big Pharma to
Recoup Opioid Crisis Costs, MASS LIVE (Dec. 20, 2017), https://perma.cc/TQW4-APNX.
70 Haffajee & Mello, supra note 63, at 2305.
2017] Death by 1000 Lawsuits 77
80 Debra Cassens Weiss, Lawyer Who Targeted Tobacco Companies Encourages State Suits
Against Drug Makers for Opioid Crisis, ABA JOURNAL (Jul. 25, 2017), https://perma.cc/A23H-
4X99.
78 New England Law Review [Vol. 52 | 1
should not have to pay the costs of treating smoking-related diseases such
as lung cancer, heart disease, emphysema, low-birth-weight babies, and
other smoking related ailments.81 The strategy, by using public nuisance
and other equitable theories, sought “to avoid the need to prove specific
causation of any individual’s illness and to eliminate defenses based upon
a smoker’s own conduct, such as contributory negligence and assumption
of the risk” which had long plagued individual plaintiffs.82
Within three years of Moore’s first filing, about forty other states had
filed lawsuits of their own.83 Some states sought recovery under other
theories including “deceptive advertising, antitrust violations, federal
Racketeer Influenced Corrupt Organization (RICO) claims, unfair
competition, a variety of fraud allegations, and in at least two states,
Florida and Massachusetts, statutory claims based on the enactment of
specific health care cost recovery legislation.”84
Ultimately, courts never weighed in on the validity of the claims
because in June 1997, the parties agreed in principle to a global settlement
requiring the tobacco companies to pay more than $368 billion over a
twenty five year period.85 Congress had to approve the settlement, but they
failed to do so.86 The tobacco companies settled with four states
individually (Mississippi, Minnesota, Florida, and Texas) for
approximately $40 billion total, and then entered into the Master
Settlement Agreement with the remaining states in the amount of $206
billion—with a total settlement amount of $246 billion spanning at least
twenty-five years.87
The Master Settlement Agreement (“Agreement”) is the long and
complex agreement which governs the payments to the states. 88 The
Agreement’s purpose was to compensate the settling states for taxpayer
money spent on healthcare costs connected to tobacco-related illness.89 The
Agreement limited future liability for legal claims brought by the settling
states based on the conduct at issue in the settled lawsuits. 90 Financially, it
From the Master Settlement Agreement, 17 WIDENER L. REV. 159, 164–67 (2011).
84 Robert L. Rabin, The Tobacco Litigation: A Tentative Assessment, 51 DEPAUL L. REV. 331,
338 (2001).
85 Sloan & Chepke, supra note 83, at 168–69.
86 Sloan & Chepke, supra note 83, at 168–69.
87 Gifford, supra note 15, at 762.
88 Sloan & Chepke, supra note 83, at 168–69.
89 The Master Settlement Agreement: An Overview, supra note 75, at 1.
90 The Master Settlement Agreement: An Overview, supra note 75, at 1.
2017] Death by 1000 Lawsuits 79
Police, Sheriffs, and Health Agencies Must Step Up Their Response, POLICE EXEC. RESEARCH FORUM
9 (Sept. 2017), available at https://perma.cc/8TAF-ECQD [hereinafter The Unprecedented Opioid
Epidemic] (“The reason PERF continues to focus on the opioids crisis is that despite the
groundbreaking work that police and other agencies are doing, the epidemic is continuing to
worsen.” (emphasis in original)) .
98 See Liz Farmer, This Week in Public Finance: The Cost of the Opioid Epidemic, Connecticut’s
cost is hard to calculate, a recent study estimates that the cost of the opioid
epidemic in 2015 exceeded $500 billion.100 The increase in costs come in
different forms including “emergency call volumes, medical examiner and
coroner bills, and overcrowded jails and courtrooms . . . .”101 Criminal
justice-related expenses account for a majority of those costs, including
police protection, judicial and legal services, corrections (local, state, and
federal), and property losses.102
Other costs associated with addiction treatment—including Medicaid
expenditures and other treatment expenses—continue to balloon.103 Direct
healthcare costs associated with overdoses—like emergency room visits,
hospital admissions, ambulance transports, and Naloxone doses—are on
the rise.104 Indirect—and often hidden—costs like those for treatment of
diseases related to intravenous drug use like hepatitis and HIV continue to
rise as well.105
The financial toll is not limited to direct government expenditures
either—the crisis has affected the economy at large. 106 Studies suggest a
correlation between the increase in opioid prescriptions from 1999 to 2015
and a decline in labor force participation during that same period. 107 And
perhaps the greatest cost comes from lost earnings and productivity from
overdose deaths—estimated at $800,000 per person.108 Not only does this
affect the families of the overdose victims, it also affects local, state, and
federal tax receipts.109
However, the toll is not limited to purely financial costs—more
important, the loss of life has been devastating. 110 Since 1990, the number of
106 See Fred Dews, How the Opioid Epidemic Has Affected the U.S. Labor Force, County-by-
110 See Overdose Death Rates, NAT’L INST. ON DRUG ABUSE, https://perma.cc/QE3B-KTJ9 (last
Americans who died each year from drug overdoses has increased by more
than 650%.111 Data compiled by the Centers for Disease Control and
Prevention show that in 1999 there were fewer than 10,000 opioid-related
overdose deaths compared to 42,246 in 2016, which in itself was a 28%
increase over 2015.112 But the overdose statistics do not paint the whole
picture; many more Americans struggle with addiction than succumb to
it.113 In 2016, around 2.1 million people suffered from opioid use disorder,
another 2.1 million people misused prescription opioids for the first time,
11.5 million total people misused prescription opioids, and 948,000 people
used heroin.114 The epidemic affects many more than the users
themselves—it affects their families, friends, and communities at large. 115
With this in mind, communities are looking for solutions. 116 Inspired by
the tobacco litigation of the 1990s, many communities are shifting their
strategy toward litigation.117 The goal of these lawsuits, ultimately, is to
force the pharmaceutical manufacturers and distributors to pay for the
damage left in their wake.118 Hundreds of lawsuits have been filed and
more are expected.119 But it’s more than just money: “‘If you see dead fish
floating in the river, the best thing to do is to go upstream and find out
why the fish are being killed. . . . [T]hese lawsuits might have a role in us as
a society doing that.’”120
111 Josh Katz, You Draw It: Just How Bad is the Drug Overdose Epidemic, N.Y. TIMES,
available at https://perma.cc/5954-VHFK.
117 See Bill Meagher, America’s Opioid Crisis Looks a Lot Like Big Tobacco Spats of Yesteryear,
ANALYSIS
III. Litigation Provides Communities the Best Option for Stemming the
Opioid Crisis Because It Provides a Platform Social Change and It
Will Result in a Large Global Settlement
Because of the ends sought, litigation presents the best means for
communities facing the opioid crisis.121 Litigation has been described as a
blunt instrument rather than a scalpel.122 Yet that blunt instrument can be
effective in promoting social change. 123 Litigation—especially public mass-
tort litigation—can be a useful tool for:
(1) framing issues in terms of institutional failure and the need
for institutional reform; (2) generating policy-relevant
information; (3) placing issues on the agendas of policy-making
institutions; (4) filling gaps in statutory or administrative
regulatory schemes; (5) encouraging self-regulation; and (6)
allowing for diverse regulatory approaches in different
jurisdictions.124
The current opioid litigation is an excellent vehicle for all of the above.125
The opioid crisis provides an illustrative example of serious
institutional failures, leading to calls for institutional reform. 126 The health
care system failed its patients when—encouraged by aggressive marketing
from manufacturers—it introduced a steady stream of highly-addictive
pain medication to the public.127 The government then created a vacuum by
limiting legal access to the drugs, driving many users to cheaper illicit
alternatives such as heroin or black market fentanyl.128 The litigation
response to these failures has prompted reform efforts from policy-making
institutions, including the federal government and state governments. 129
121 See Timothy D. Lytton, Using Tort Litigation to Enhance Regulatory Policy Making:
123 See generally Cummings, supra note 121 (discussing the use of integrated legal and
https://perma.cc/Z4B3-PTYK.
127 Id.
128 Id.
129 See, e.g., Lev Facher, New Opioid Bill Would Impose Sweeping Limits on Some Prescriptions,
2017] Death by 1000 Lawsuits 83
https://perma.cc/X5PN-3MNC.
131 See Jackie Wattles, Purdue Pharma Says it Will Stop Promoting Opioids to Doctors, CNN
(Feb. 11, 2018), https://perma.cc/T5Y2-52RX (highlighting Purdue’s efforts to dial back its
marketing of opioid drugs).
132 See Richard C. Ausness, Public Tort Litigation: Public Benefit or Public Nuisance?, 77 TEMP.
L. REV. 825, 897 (2004).
133 Id.
134 Id.
135 Patty Wight, Doctors in Maine Say Halt in OxyContin Marketing Comes ‘20 Years Late’,
137 See Diane Wagner, Rome Files Suit Against OxyContin, Other Opioid Makers, ROME NEWS-
TRIB. (Mar. 3, 2018), https://perma.cc/DL9L-P96S (“The suit is asking the court to halt the
companies’ ‘unfair or deceptive practices’ and order them to abate the public health crisis. It’s
seeking compensation for the plaintiffs’ actual costs of dealing with the epidemic locally,
including interest; the establishment of an ‘abatement trust fund’ similar to that in the tobacco
company settlement; punitive damages; attorneys’ fees; and ‘all other relief as provided by
84 New England Law Review [Vol. 52 | 1
139 Ernest J. Weinrib, Corrective Justice, 77 IOWA L. REV. 403, 408 (1992).
142 See Lytton, supra note 121; See generally Cummings, supra note 121.
145 See, e.g., Cliff Katz et al., Litigation Won’t Cure America’s Opioid Epidemic, N.Y. LAW J.
(Feb. 14, 2018), https://perma.cc/B7HH-7JP3; Robin Newhouse, Lawsuits Are No Solution to the
Opioid Crisis, LAS VEGAS SUN (Mar. 1, 2018), https://perma.cc/8NDW-BQNZ.
146 See Katz et al., supra note 145.
147 See Katz et al., supra note 145.
148 See Katz et al., supra note 145.
149 See Moghe, supra note 22.
2017] Death by 1000 Lawsuits 85
The lawsuits in response to the opioid crisis will result in a large global
settlement much like the tobacco litigation of the 1990s.159 The strategies are
the same, the claims are similar, and the faces are familiar.160 What will
ultimately drive the success of opioid litigation is not the validity of the
substantive claims or the theories on which those claims are based, but the
power associated with public mass-tort litigation.161 Pharmaceutical
157 See, e.g., Katz et al., supra note 145; Newhouse, supra note 145.
161 See Jerry Mitchell, Judge: Stop the Legal Fights and Curb the Opioid Epidemic, CLARION
That is not to say that the plaintiffs will not face their challenges. 164
Tobacco litigation and opioid litigation are indeed different. 165 With
tobacco, customers were using the product as instructed which caused
them to get sick.166 With opioids, however, customers are not necessarily
using the pills as directed, “so it is harder to blame the pharmaceutical
companies for the effects of that misuse . . . .”167 Moreover, pharmaceutical
companies will argue that they are not to blame for individuals misusing
the drugs or using more than prescribed.168 And their argument has some
merit; there are many potential parties that have played a role in the opioid
crisis, including doctors, pharmacies, distributors, the government, and the
patients themselves.169 The availability of other potential wrongdoers
allows opioid manufacturers to point fingers and reduce their exposure. 170
Plus, any global settlement will be far less than the massive $200 billion
tobacco settlement because of the relative scale of the industries, the
companies’ profits, and the damage done.171 Fortunately, the damage
caused by the opioid crisis, although devastating, has not reached the same
162 See Ayesha Rascoe, Trump Urges Lawsuit Against Opioid Companies, Tougher Sentences for
164 Lauren A. Rousseau, An Avalanche of Lawsuits Holds Hope for the Opioid Epidemic, JURIST
171 James F. Tierny, It’s Time to Take on Big Opioid Like We Did With Big Tobacco, BUZZFEED
2. Predictions
172 Id.
173 See The Master Settlement Agreement: An Overview, supra note 75, at 1.
174 Jan Hoffman, Can This Judge Solve the Opioid Crisis?, N.Y. TIMES (Mar. 5, 2018),
6, 2017), https://perma.cc/XZU5-UG8D.
178 Jef Feeley & Jared S. Hopkins, Purdue Pharma Discloses Negotiations with AGs on Opioids,
change the overall outcome.182 The litigation strategy and the end goal
remain the same: echo the strategy of tobacco litigation and reach the same
result.183
Agreement).
185 See, e.g., Jim Estes, How the Big Tobacco Deal Went Bad, N.Y. TIMES (Oct. 6, 2014),
192 Fifteen Years After the Tobacco Master Settlement Agreement, supra note 188.
193 Actual Annual Tobacco Settlement Payments Received by the States, 1998-2018, CAMPAIGN
FOR TOBACCO-FREE KIDS (Nov. 9, 2018), https://perma.cc/AUL7-RZYD.
194 See Fifteen Years After the Tobacco Master Settlement Agreement, supra note 188.
195 See Shital A. Patel, The Tobacco Litigation Merry-Go-Round: Did the MSA Make it Stop?, 8
DEPAUL J. HEALTH CARE L. 615, 658–63 (2005); Fifteen Years After the Tobacco Master Settlement
Agreement, supra note 188.
196 Sloan & Chepke, supra note 83, at 162–63.
197 See Andrew Nehring, State Tobacco Settlement Funds Go Up in Smoke, CITIZENS AGAINST
GOV’T WASTE (May 12, 2016), https://perma.cc/NS72-VBM9.
198 See id.
200 See Total Annual State Tobacco Prevention Spending FY1999 – FY2018, CAMPAIGN FOR
203 See Daniel Bases & Stephanie Kelly, Tobacco Bond Prices Weaker After U.S. Proposes
The lessons learned from the tobacco Master Settlement Agreement can
provide much-needed insight to the communities seeking a similar
agreement to bring an end to the ongoing opioid litigation.219
First, to avoid many of the constitutional challenges lodged against the
Master Settlement Agreement, Congress should solidify the settlement
through an act of law.220 Like the parties to the Master Settlement
Agreement, the parties to the opioid litigation settlement should petition
Congress for a global resolution, only this time around, Congress should
actually ratify it.221 The saying goes “strike while the iron is hot” and
Agreement).
218 See Rousseau, supra note 164.
219 See generally Cheryl Healton, Dean, College of Global Public Health, New York
University, Applying Lessons Learned from the Master Settlement Agreement with Big
Tobacco to Other Industries (Feb. 14, 2018), available at https://perma.cc/EC42-TQNY.
220 See The Master Settlement Agreement: An Overview, supra note 75, at 1.
221 See The Master Settlement Agreement: An Overview, supra note 75, at 1.
92 New England Law Review [Vol. 52 | 1
ideally this should take place while the issue is on Congress’s radar.222
One of the areas where a global opioid settlement and the Master
Settlement Agreement will differ is the area of marketing.223 While both
products are inherently addictive, and both products were marketed as
safe, the marketing for each differs vastly. 224 For example, tobacco
companies overtly targeted youth and disadvantaged populations, while
opioid manufacturers directed most of their marketing efforts at
physicians.225 That said, an opioid settlement, rather than focusing on
targeted advertising campaigns, should prohibit or limit opioid
manufacturers’ and distributors’ sales teams from marketing and
promoting opioids to physicians, something that the companies have
already begun doing.226 The agreement should also require that the
companies sponsor public service announcement-type media spots
warning consumers of the dangers of the drugs and providing information
about addiction treatment options.227 But the problem now is not so much
the marketing or over-prescription of opioids, it is the downstream effect of
those actions, the solutions to which should be the main focus of any future
settlement.228
Because the damage caused by the opioid crisis is not as widespread as
that caused by tobacco, the settlement will be far less than the eye-popping
amount paid by the tobacco companies. 229 Where there are far more
plaintiffs involved in the opioid litigation, each party will receive a small
percentage of the total.230 This leads to the problem of how to allocate those
222 See Stephanie Armour, Opioid Crisis Gets Washington’s Attention, WALL ST. J.,
224 See Zachary A. Sigel, Suing Big Pharma for the Opioid Epidemic is Too Little, Too Late,
MEDIUM (Oct. 11, 2017), https://perma.cc/PH9A-5FGX (“[A] critical difference between opioids
and tobacco is the supply chain. Unlike tobacco, which was sold directly to consumers and
used as directed, opioids run through several intermediaries before reaching consumers.”).
225 Compare Van Zee, supra note 31, at 221–25 (discussing how Purdue marketed
aggressively to medical providers), with Tobacco Industry Marketing, AM. LUNG ASS’N,
https://perma.cc/7963-VW4X (last visited July 31, 2018) (discussing how tobacco companies
market the product directly at the consumer).
226 See Andrew Liptak, OxyContin Maker Purdue Will No Longer Market Opioid Drugs to
TIMES (Nov. 24, 2017), https://perma.cc/7857-ZGYQ (discussing how tobacco companies are
being forced to produce and publish through media “corrective statements” about the health
risks and addictive nature of smoking).
228 See Joanna Walters, America’s Opioid Crisis: How Prescription Drugs Sparked a National
resources.231 Rather than use the political and inherently unfair process
seen in the Master Settlement Agreement, the parties should use a neutral
third-party to allocate the funds.232
Ultimately, any global settlement will focus on financial payouts to the
plaintiff communities and the establishment of addiction treatment
programs.233 For the settlement to be successful, the plaintiff communities
must take seriously their obligation to protect their constituencies. 234 This
means not squandering the funds like many settling states did with their
Master Settlement Agreement payouts.235
Once the parties determine how to allocate the funds, the agreement
should mandate that the parties can only use the funds for programs that
directly contribute to addiction treatment, education, rehabilitation, and
certain limited law enforcement functions.236 The agreement should
prohibit the use of the funds for any purpose unrelated to the opioid crisis,
and the plaintiff communities should be prohibited from securitizing any
settlement payments.237 These measures will go a long way in ensuring that
the settlement puts public health principles first and allows communities to
combat the crisis effectively.238
CONCLUSION
the settlement since distributions began in Fiscal Year 2000. Of that, only $23 million, or less
than 2% of the total Tobacco Settlement Funds, have been used on programs specific to
reducing the number of smokers or anti-tobacco efforts.”).
236 Tierny, supra note 171.
237 See Chretien, supra note 185.
238 Tierny, supra note 171.
94 New England Law Review [Vol. 52 | 1
echoes that of the tobacco litigation in the 1990s, and the result will be the
same. Sooner, rather than later, the parties will agree to a large global
settlement. A settlement that will reimburse the communities for their
expenditures and take steps to abate the crisis. Using the tobacco Master
Settlement Agreement as the precedent and the framework, the parties can
craft an agreement that radically alters the marketing of prescription
opioids and funds anti-addiction and treatment programs nationwide.
However, unlike the Master Settlement Agreement, any opioid settlement
must mandate that settlement funds be spent only on opioid addiction-
related programs. While litigation will not solve the crisis, it provides the
best option for communities and the country at large.