Anatomy of the Opioid Litigation: A Case Study in Complex Litigation

Although easy to lose sight of in the midst of the Coronvirus epidemic, the United States is in the midst of an opioid addiction epidemic. More than 10 million Americans 12 years and older are estimated to have misused opioids in 2018, most of which misuse was linked to prescription drugs. Approximately 47,000 Americans died of opioid overdoses in that year. Opioid use is reported to have peaked in 2011 but opioid addiction remains a problem in many parts of the country (CNN Editorial Research, "Opioid Crisis Fast Facts," June 21, 2020, available at https://www.cnn.com/2017/09/18/health/opioid-crisis-fast-facts/index.html). The opioid crisis presents a variety of public policy challenges. Like the Crack epidemic of the 1980s, opioid misuse has had disproportionate effects on certain communities. While the former disproportionately affected poor Black urban communities and other urban communities of color, the latter has primarily affected poor White communities, particularly in non-coastal areas of the country. The former was met with popular criticism of its victims and draconian criminal justice policies that incarcerated a generation of Black Americans and other people of color. The latter has been met with an outpouring of concerned media commentary, and funding (however insufficient) for public treatment programs. It is difficult not to conclude that systemic engrained racism explains much of this difference. The opioid crisis also differs from the crack crisis, however, in that opioid victims and their advocates have been able to target responsible parties and attempt to hold them accountable for the harm and losses their conduct has imposed on addicts, their families and their communities. It is widely agreed that the origin of the epidemic was the virtually unlimited distribution of prescription opioid drugs, allegedly encouraged by the drug manufacturers and enabled by other corporations in the pharmaceutical supply chain and by the physicians who prescribed the drugs. The opioid epidemic has also led to a wide-ranging litigation, which has taken as its role model earlier litigation against tobacco manufacturers and ongoing litigation against gun manufacturers. The opioid litigation stands as an example of joining private and public civil litigation to claim compensation for losses due to alleged wrongdoing by private corporations and in the process reshape public policy with regard to harm. To prevail against defendants, plaintiffs have had to persuade courts to apply liability doctrine in unusual although not entirely new ways. Much of the litigation resulting from opioid overdoses and addiction has been contested in the federal courts, which have deployed an armamentarium of formal and informal procedural rules and practices developed over the past several decades to manage and resolve large-scale litigation. Innovative approaches have been adopted by the federal judge assigned to manage the litigation. Key defendants have chosen to manage their liability by seeking the protection of the bankruptcy courts. In sum, the opioid litigation offers opportunities to consider the roles of socio-economic inequality and racial attitudes in shaping perceptions of harm, the potential of tort law to provide remedies for losses, and the challenge of pursuing remedies for mass loss in federal courts. Through readings, guest lectures, discussion and individual research papers on relevant topics of your choice, this seminar will provide both practical information about litigating mass tort claims and space to consider the appropriate role of courts in solving social policy problems. Attendance, Class Participation, Written Assignments, Final Paper.