Perspectives

We cannot litigate our way out of the opioid crisis

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More than twenty years after Purdue Pharma launched its first advertising campaign to tout a new miracle drug known as OxyContin, state governments have scrambled to find a political solution to end the opioid crisis in our country.

After more than 20 years, the question we must ask ourselves is whether we really want to end the opioid crisis, or whether we are only interested in looking for someone to point the finger of blame at for our failure to find an answer to a problem which will never be solved through legislation, or for that matter a problem which will never be solved through endless lawsuits against pharmaceutical companies responsible for manufacturing and distributing controlled substances.

Unless you were just rescued from an island where you have been stranded for the past twenty years, you probably know that at least in part that ground zero for the opioid crisis in this country can be traced to 1996, the year the Food & Drug Administration approved Oxycontin for distribution as a the “first formulation of oxycodone that allowed dosing every 12 hours instead of every 4 to 6 hours.” From 1996, until today, oxycodone, and other synthetic drugs, have contributed to a growing opioid epidemic which has claimed thousands of lives, and destroyed communities in every corner or our country.

Recently, Attorney General Andy Beshear filed a lawsuit against Endo Pharmaceuticals and Endo Health Solutions which in his words was done “to hold Endo responsible for unlawfully building a market for the chronic use of opioids in the name of increasing corporate profits, knowing all along the dangers of Opana ER that led to devastating effects on the Commonwealth.” In the words of Attorney General Beshear, “My office refuses to sit back and watch families be torn apart while opioid manufacturers like Endo line their pockets at the expense of our communities and our future.” After the settlement in the Purdue Pharma case which was defended by Attorney General Beshear’s former law firm, it is somewhat difficult to understand how he could make the statement with a straight face. Very candidly, instead of more lawsuits, it is time to come together as a country and find real solutions to the opioid crisis, a crisis which is far more complex and far-reaching than the conduct of individual pharmaceutical companies.

So, should we excuse the conduct of Endo Pharmaceuticals, Purdue Pharma, or any of the other pharmaceutical companies responsible for manufacturing and distributing drugs which have a high potential for abuse? Well, the answer is not that simple. Take a moment to think about a world without drugs. Consider if you will just exactly what would happen if we filed a lawsuit against every pharmaceutical company responsible for manufacturing any of the twenty-one listed Schedule II substances, substances which have been defined as having a high potential for abuse, yet substances which have been defined as having a current and acceptable medical use?

What would, and will likely happen if we continue down a path of endless lawsuits against every pharmaceutical company responsible for the manufacture and distribution of Schedule II drugs is that the day will come when pharmaceutical companies will no longer pour millions of dollars into research to find the next new miracle drug which could save countless lives. What would, and will likely happen is that the day will come when pharmaceutical companies will be forced into bankruptcy which will end the availability of those drugs legally manufactured, drugs which not only end pain, but also drugs which provide cures for thousands upon thousands of medical problems. What would, and will likely happen if continue down a path of endless lawsuits against pharmaceutical companies is that we won’t have to worry about an opioid crisis because there won’t be any opioids, or for that matter any other Schedule II controlled substances. What would, and will likely happen is that we will have succeeded in returning the practice of medicine to the dark ages, a time when a shot of whiskey was used to both control pain and as a cure for myriad medical problems.

So, what we really need to ask ourselves is whether endless lawsuits against every pharmaceutical company in this country will result in a solution to the opioid epidemic? Very honestly, the answer is simple, the epidemic will not end. For anyone who has been on the front lines of the opioid crisis, it is well known that opioids are nothing more than a synthetic replacement for opiates which are derived from the opium poppy. When someone is addicted to an opioid, and that someone can no longer get a legal prescription, then more than likely the addicted person will have little choice other than to get their drugs on the streets where there are unlimited supplies of opioids which are manufactured by the drug cartels and smuggled into this country. Or worse yet, the addicted person will be forced to resort to an illegal replacement drug such as heroin, or one of the opioid analgesics such as fentanyl or carfentanyl both of which are readily available as a substitute for legally prescribed opioids.

Candidly, there are many questions which need to be answered before Kentucky continues down a path of filing countless lawsuits against other pharmaceutical companies as a so-called means to end our opioid crisis. First, and foremost, what needs to be answered is what evidence does Kentucky have that pharmaceuticals sold by Endo, or any other pharmaceutical company for that matter was the opioid ingested by an overdose victim? Next, what evidence is there that even if there are trace amounts of opioids in the system of an overdose victim that the opioid was obtained legally from a pharmaceutical company, or whether the opioid was obtained from opioids illegally smuggled into this country and sold on the streets of every community in this country. While there are many other questions which will necessarily have to be answered as the lawsuit against Endo proceeds, or before Kentucky decides to file other lawsuits, it is clear from the outset that Kentucky has a very tall mountain to climb.

After more than 20 years, one is left to ask the rhetorical question of what can be done to end the opioid crisis in this country? Although there are no easy solutions to the opioid crisis, maybe, just maybe, instead of endless lawsuits against pharmaceutical companies, as a country we should come together and work with the pharmaceutical companies to put in place commonsense solutions to end over-prescribing of opioids. Maybe, just maybe, instead of enriching law firms responsible for the endless lawsuits, we should consider negotiating a master settlement agreement like those which resolved endless years of litigation against asbestos and tobacco manufacturers. Or maybe, just maybe, we should get serious about addiction treatment and the prosecution of those involved in the illegal, not legal distribution of all drugs, not just opioids.

As always, I would invite each of you to join me on my imaginary mountaintop and help me shout to the world and anyone else who is willing to listen that it is time for politicians to stop these endless lawsuits against pharmaceutical companies simply to generate publicity for their next political campaign. If you are one of the thousands upon thousands who have lost a family member or friend, please join me on my imaginary mountaintop and help me shout to the world and anyone else who is willing to listen that the time has come for all of us to sit down at the table and consider actual solutions to our opioid crisis, solutions which would include treatment for those addicted to opioids and other drugs.

In the end, we need to get serious and find a way to end a crisis which has reached epidemic proportions. More importantly, we need to understand that no matter how many lawsuits we file we will never litigate our way out of a crisis which calls for solutions, not verdicts.

Mark Wohlander, a former FBI and federal prosecutor, practices law in Lexington, Kentucky.

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