Public hazard or not?Summary of opioid litigation


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Author: Jerri-Lynn Scofield, he has served as a securities lawyer and derivatives trader. She is currently writing a book about textile craftsmen.

Over the past few decades, more than half a million Americans have died from opioid overdose. Litigation continues through federal and state courts, and plaintiffs seek to hold guilty parties accountable for their role in the epidemic.

In August, when Judge Robert Delane approved Purdue’s bankruptcy plan despite the strong opposition of some state attorneys general, the Sackler family achieved a strategy to protect their personal financial assets and provide guarantees for future legal claims. It was a great success. United States Bankruptcy Trustee. Relying on the services of corporate legal giants Davis, Polk, and Wardwell, the Sacklers successfully tried the case in Drain’s court, where they believe they will receive the most sympathetic hearings they might encounter in other federal courts. This kind of “venue shopping” is very common in bankruptcy proceedings. Now that Ma has gone to the barn and successfully entered the next county, Congress is debating “reform” the bankruptcy process (for more details, please refer to this Yves post,”Catastrophic injustice”: Judge determines that Purdue Pharmaceuticals bankruptcy plan protects Sacklers).

I didn’t hold my breath, because in my lifetime, the trend of legal “reform” seems to be, to put it simply, to make it more difficult for ordinary people to seek legal remedies in court. Coupled with the fact that the benches are increasingly favourable to business, these statutory changes mean that the plaintiff usually does not even enter the court in the first instance. Even in the unlikely event that they muster enough resources to win the trial, they will see a favorable judgment overturned on appeal — or at least, severely restricted. By the way, this tilt is by no means Trumpian, or even a Republican phenomenon, because the Democratic judicial appointees are also reliably business-friendly and come almost entirely from white shoes and corporate bars and legal academia. Not a public defender or plaintiff’s lawyer.

In recent days, I have seen developments in opioid litigation in four actions across the country, and I will discuss each of them here. There are currently more than 3,000 cases against drug manufacturers, distributors and pharmacies under review or pending.

Appeal overturns California verdict

In early November, the California court rejected the pollution claims against Johnson & Johnson and Teva Pharmaceuticals. In this case, as in other pending cases, the plaintiff argued that under state law, the defendant argued that the company created “public hazards” by exaggerating the benefits of opioids and underestimating the risks.In a bench trial before the judge, not the jury, Judge Peter Wilson of the Orange County Superior Court ruled: “There is no evidence that the increase in prescriptions is not the result of medically appropriate painkillers to patients in need,” according to New York The Times reported that In Opioid drug manufacturer achieved major victory in California trial.
Oklahoma state judge’s decision was overturned on appeal

Last week, the Oklahoma Supreme Court-the state’s Supreme Court-overturned the $465 million judgment against Johnson & Johnson in 2019 with a 5-1 vote (see The judge made a $572 million verdict against Johnson & Johnson in the Oklahoma opioid trial: the next settlement? ) The verdict was also made after the judge’s trial-the scale of the verdict was considered particularly important because it was issued by the judge, which shows that the jury will tend to receive higher damages. The damages award only covered a one-year emission reduction plan, although the plaintiff sought US$17 billion to cover at least a 20-year emission reduction period. The jury tends to be more sympathetic to the victim and therefore award more damages; these judgments are often significantly reduced on appeal, especially because the U.S. Supreme Court has outlined constitutional restrictions on punitive damages in a series of cases. To a large extent, it is limited to single-digit multipliers of economic losses.

Many other outstanding claims are also based on public nuisance arguments, which is a matter of state law. The New York Times recently conducted a pessimistic assessment of the prospects of such cases, showing that the decisions of California and Oklahoma are a major setback for opioid plaintiffs. Core legal strategy for opioid companies may falter:

These rulings are likely to be ominous indicators of upcoming trials. Jury trials are ongoing in New York and Ohio. West Virginia is awaiting a federal judge’s ruling. More tests are being carried out on the runway.


Broadly speaking, Public Nuisance Law, Which dates back to England in the 12th century, prohibits acts that interfere with the rights generally enjoyed by the public. Almost every state has public nuisance laws; opioid cases heard in federal courts apply to every state’s statutes. In recent years, state nuisance laws against manufacturers of guns, paint, and e-cigarette devices have been adopted, with mixed results, and have become an increasingly common means of combating environmental hazards and climate change lawsuits.

In opioid cases, thousands of state and local governments and tribes have argued that companies in the pharmaceutical supply chain—manufacturers, distributors, and retail pharmacies—are creating “public hazards” by obstructing public health.

From a pragmatic point of view, this approach appears bold and wise.according to [Adam Zimmerman, a law professor who teaches mass litigation at Loyola Law School in Los Angeles] Many states’ public nuisance laws do not include a statute of limitations, which limits the time for legal action. The amount that can be recovered may be much greater than the amount required in more traditional tort claims. In some states, a defendant is not only responsible for the damage caused by him, but also for the damage caused by other defendants.

The remedy in public nuisance litigation is called relief: the defendant found to be responsible must take corrective measures, and usually must pay a large amount of money to prevent future harm. For example, polluters must clean up rivers. In fact, the Oklahoma Attorney General’s Office has developed a huge funding proposal to try to get opioid manufacturers to pay for years of addiction treatment and education programs.

what’s the result hardHowever, an indisputable link is being established between “public nuisance” and the discrete behavior of many types of companies that provide federally approved drugs prescribed by doctors and should be monitored by state and federal agencies.

Pharmacy trial ends in Ohio

Now, although the decisions of California and Ohio are significant, the two swallows were not made in the summer. On Monday, attorneys made closing statements in Ohio’s first trial against drugstore chains. They merged lawsuits filed by state and local governments in an attempt to get CVS, Walgreens, and Walmart in the opioid epidemic. Take responsibility for the role. The Lake and Trumbull County legal counsel argued that these companies failed to prevent overdose of addictive painkillers from overwhelming the counties, or failed to prevent false prescriptions, which caused public nuisance. These companies are not only responsible for collecting money and prescribing prescriptions.

The jury trial was heard in court by Judge Dan Polster, who presided over a cross-regional litigation concerning opioid claims (see, for example, The four companies settled just before the leading opioid trial began in Ohio today) It will be closely watched as a guide for the jury to make decisions in future opioid lawsuits. Polster had earlier ruled that public nuisance claims can continue.

Trial begins in Washington State

On Monday, Washington State began a bench trial against drug distributors AmerisourceBergen, Cardinal Health and McKesson, involving more than $95 billion. The state claimed that these companies violated Washington’s consumer protection laws by failing to create and monitor tracking systems to prevent the illegal sale and distribution of opioids.

So far, the US legal system has not fully honored justice for opioid victims. First, lawsuits are progressing slowly. Seven years have passed since certain cases were first filed. By closing or otherwise restricting the operation of federal and state courts, the COVID-19 pandemic has undoubtedly exacerbated this problem.

Nonetheless, the decisions of California and Oklahoma do not bode well for plaintiffs seeking to make those who profit from the sale or distribution of opioids accountable for the opioid epidemic. The issue of achieving some form of “justice” for opioid victims goes beyond a particular bankruptcy judge. Alas, I worry that any “reform” movement will be overwhelmed by those who think that the current system is neither flawed nor flawed in the existing legal framework (whether federal or state). We no longer seem to believe in making people, let alone companies, responsible for the chaos they cause.

I hope the pending lawsuits in Ohio and Washington state can prove that I was wrong in this regard. But then the inevitable appeals will follow, inevitably to the Supreme Court of the United States, who knows what this may lead to. I think I am sitting down to watch a performance by Die Walküre or Siegfried, because I have only heard Das Rheingold. These lawsuits are far from over, fat women have just begun to sing.



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