A plague of opioid addiction is spreading across our country and leaving many state and local governments scrambling to find the resources needed to deal with the litany of problems this epidemic has fostered. To that end, local governments throughout the country have filed lawsuits against pharmaceutical manufacturers and distributors whom they feel are culpable, at least to some extent, for the proliferation of opioid-based drug abuse.
These lawsuits against pharmaceutical companies are reminiscent of the suits brought against “big tobacco” in the 1990’s which resulted in a settlement that saw, among other things, the creation a multi-billion dollar trust fund. The big-tobacco-settlement trust fund is used to reimburse the states for their tobacco-related health care costs as well as for use in efforts to stymie the expansion of the tobacco public health disaster. Local governments are hoping their lawsuit against the pharmaceutical companies will provide an outcome similar to the big tobacco lawsuits.
At least two New Jersey municipalities – Paterson and Toms River – plan to file their own lawsuits against the pharmaceutical companies. Their suits are expected to echo the complaints filed against the pharmaceutical companies by various other states and municipalities throughout the country. The legal theories used by municipalities and other plaintiffs vary and no suit has yet to advance far enough to determine which of these theories could lead to a success in court. But, one theory has emerged as having the most potential for success – the “public nuisance” theory. This is the most commonly put forth legal theory and mirrors the one used in the successful, big tobacco lawsuits.
The public nuisance theory is premised on the idea that as a result of pharmaceutical companies’ questionable marketing techniques in conjunction with their understating of the addictive nature of the drugs, companies have created a situation which has caused local governments to incur additional costs to protect the health, welfare, and safety of the public. No doubt, local governments have seen an increase in drug-related crime and health issues since the beginning of the opioid epidemic and the cost to address these issues has ballooned. In fact, many first responders now carry and regularly need to use the anti-overdose drug Narcan, as the last lifeline for more and more overdose victims. While the cost of carrying Narcan can be easily tallied, the total costs to a municipality battling the opioid epidemic are impossible to quantify and it is these costs that the plaintiffs seek to recover.
Monetary damages are not the only thing sought in these lawsuits. The true goal of the municipalities is to put an end to the techniques employed by the pharmaceutical companies that many believe have led to this national crisis. Absent addressing that, it is believed any court ruling would be a pyrrhic victory.
The League is working with our national counterpart, the National League of Cities, to monitor the New Jersey lawsuits and those across the country. We will continue to monitor this important issue and will keep our members updated on any developments.
Contact: Frank Marshall, Esq., League Staff Attorney, firstname.lastname@example.org or 609-695-3481 x137.