The Explosion of Opioid Lawsuits

Opioid abuse and addiction can impact anyone, and everyone knows someone who's been impacted. That's why we call it the crisis next door. More than fift hundred lawsuits have been filed against manufacturers and distributors of opioids by state attorneys, general, cities, counties, hospitals, other groups and individuals. A judge in Cleveland, Ohio is handling what's called a multidistrict little game ation, which has become incredibly complicated, raising a number of novel legal questions.

Health care attorney Harry Nelson joins me now he's written a new book entitled The United States of opioids a prescription for liberating a nation in pain? Harry, how much is Big Farmer responsible for the opioid crisis? Big Farms certainly was a culprit here. What I like to say is that they probably were the equivalent to the spark that lit the fire. But at the same time, there were multiple points of system failure that drove this crisis.

So it's certainly Big Farm ups deserves to pay a price for having been so irresponsible and so aggressive in marketing these drugs even as people were dying at horrific rates. But at the same time, the reason that it happened was in the backdrop was a whole set of failures in our training of physicians, in our government regulation, in our health insurance system, and we have to look at

those also as responsible pieces of the puzzle. So other than Big Farm, of the other health care actors who have come in for a lot of criticism have been physicians.

A lot of people have said physicians just were blindly over prescribing, that we had pill mills all over the country, and there were certainly physicians examples of physicians who were floppy in their prescribing practices, but more broadly, there's been a failure on the part of our medical training system and our health system to really ensure that physicians are

trained on treating pain and addiction. It's really a problem that goes back to the early twentieth century when when the government first began to crack down on opium and heroin use, we basically trained a whole generation of physicians not to treat pain. It was a massive crackdown because

so many people were becoming addicted. And then it took about seventy years, but we forgot that and the pendulum swung back to you know, worrying about pain surveys and making sure that patients weren't in pain, and now it swung back again. So I think that we should look at the issues around physicians really as in large part a structural issue around training, and then also an issue about how insurance companies drive decisions. Insurance companies and the

pressure for low cost care has translated to pills. Right. There are lots of solutions. We have a pain crisis in this country, fifty million Americans complaining about pain, but the answer that the insurance industry wants is to give people pills, not to talk about physical therapy and chiropractic and the whole laundry list of personal services that take professionals and time and cost more than just handing somebody a pill. And finally, I think that we need to

look at the role of government. Right it was the government that started calling pain the fifth vital Sign. It was the Joint Commission, which is responsible for Medicare accreditation, which really pushed this idea that we needed to respond

to patients pain, which is an absolutely legitimate idea. But the problem is that when we survey patients and hospitals and asked you know, how bad is your pain, people, a positivity bias causes most people to to say eights and nine, and that that was part of the problem. And more broadly, you know, the d e A has

been an obstacle to research on alternatives. The d e A was asleep at the wheel as sent and all flooded into the country as physicians stopped prescribing, and we've seen the FDA utterly failed to police marketing by farmers. So there's lots of points of blame to go around our health system and places where we need to fix things to put an end to the causes of this crisis. You put the d e A at the top of the list of government agencies that failed the country in

the opioid crisis. Why at the top? Well for me that there's three pieces to the d A that I just think should be troubling to most people. Number one was, as I said, you know that the da starts off as a very aggressive force of cracking down on physicians,

and it's not clear to me why. You know, we have as a country made it to vision and this was Supreme Supreme Court decision that medical practice and prescribing is really an oversight issue for the States to decide when what a doctor needs to do to prescribe appropriately. But the d A stepped in very aggressively and frankly terrorized physicians. And it's the insertion of the d e A into the oversight of medicine has left many many doctors afraid to prescribe and really created a crisis for

people in chronic pain. Number Two, when the response to the crackdown on physicians by the d A was with black car heroine and sent and all flooding into the country. Uh, the d A was it was mind boggling, but somehow it took them about three years to recognize that China and Mexico, we're just importing massive amount of low cost sent and all that was killing people that we're looking for the DA to do anything, it should have been to police our borders and to stop stop this stuff

from coming in. But it literally was the cent and al started coming in, and it literally was not until seen that the d A even began to think about how to stop it. As recently as last year, you could do a search on bi fentanyl and find websites from China advertising on Google and freely mailing in packets of fentanyl. And finally, and this is my third point that I think we really need to re examine what the DA is doing, is that the DA has been

obstructing research on alternative pain therapeutics. So when you look at what's happening around cannabis and other alternative therapies, uh, the DA has been absolutely obstructive. I'm contacted constantly by universities that have researchers who want to research alternative pain therapeutics like cannabis, and they are blocked because they're federally funded. If you want an example, a very recent example of

how how difficult the DA has been. There were repeated efforts by the hemp industry to say, look, we have a non cannabis source of CBD and other therapeutics that potentially could solve the pain problem. And the d A absolutely refused to bend uh and fought vigorously, and it took Congress passing a new farm bill last month to change the status of CBD and to say to the

d e A, we're rescheduling. So the d A, from my perspective, has been at multiple points of this crisis, you know, dragging its feet and trying to do everything it can to pursue an agenda that's not in line with fixing the opioid crisis. Let's turn to the law now,

how has the opioid crisis shaped American law? I think you can draw a straight line from the staggering rise in overdose deaths in the late nineteen nineties, which really drew an unprecedented level of attention, to the fact that something like twenty million Americans are living with various substance

use disorders. You can draw a straight line between the opioid crisis and the decision in two thousand eight past Mental Health Parity, which President Bush, George W. Bush signed into law, which was the first time that we said we're not going to allow health insurance to discriminate between medical surgical care and substance use disorder and other mental

health care. And likewise, when you look at what the Obama administration and Congress put together in crafting the Affordable Care Act, it's unmistakable that the opioid crisis was in people's thoughts in the making the decision to include substance use disorder treatment for the very first time as one

of the ten essential health benefits. Even when you look at the fight to dismantle the Affordable Care Act and the Trump administration's efforts to repeal, what we saw was that Republican senators flipped over and voted to block the rollback of the Medicaid program through the Affordable Care Act, specifically because of the importance, the critical importance of getting more acts us to care for people across the country through the Medicaid program to deal with the opioid crisis.

So there's been a whole series of changes in how we approach addiction and basically bringing addiction treatment into the fold of healthcare, which it wasn't twenty years ago, and I think that's directly attributable to the opioid crisis. There's there's lots of other smaller examples, but that's the big one. At the beginning I mentioned the multi district litigation. Which side has the advantage in those lawsuits, the plaintiffs or big pharma, as we saw with big Tobacco litigation not

too long ago and the NFL the concussion litigation. When you have these mass torque class actions that hit on core societal issues, big pharma has a problem. For many, many years, companies like Produe Pharma were successful at settling cases and avoiding discovery right avoiding depositions of drug any executives and doctors, and calling attention to it. But the bottom line is this case is a ticking time bomb for big pharma and it's almost in inevitability that this

case will have to be settled. We're right now kind of in the early stages of discovery in the multi district litigation, where there are tens of millions of documents filtering in through these you know, digital rooms, which are going to take a long time to go through, and it's likely that we're gonna have some depositions, probably another year before we're on the horizon for a settlement. But I think it's inevitable that Big Farmer will have no choice but to but to settle this case. So there's

no possible wave. We would literally see one pharmaceutical company after another go out of business. It's hard to imagine how they couldn't find a jury that there could be a journey in the United States that would not be inclined to find them responsible. Thanks for being on Bloomberg Law. Harry. That's Harry Nelson. His new book is called The United States of Opioids, A Prescription for Liberating a Nation in Pain.

Thanks for listening to the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brosso. This is Bloomberg