By Walker Upchurch

 

The United States is embroiled in an opioid crisis, and throughout the Covid-19 pandemic, it has only gotten worse. According to the Center for Disease Control, during a 12-month long study, the provisional data showed that during COVID, opioid-related deaths rose by over 28%.[1] The states that have been hit the hardest are Louisiana, Mississippi, Tennessee, Kentucky, West Virginia, and Vermont.[2] Likewise, only South Dakota, New Hampshire, New Jersey, and Delaware were the states that had a lower opioid-related 12-month death count.[3] In response to this study, USA Today spoke with Dr. Paul Christo, an associate professor of anesthesiology and critical care at Johns Hopkins University School of Medicine, who stated: “Two forces here are the negative economic impact of the pandemic as well as the emotional impact… That led to a lot of people to use drugs … to cope.”[4] Thus, the downturn in the economy naturally led individuals to illegal street drugs such as heroin and fentanyl.[5] Fentanyl had initially been developed as a pain management drug to treat terrible diseases such as cancer and help patients after open surgery.[6] Its effectiveness in pain management has been well noted, and it has since developed a reputation as an additive to other street drugs for a powerful impact. Currently, the United States has seized so much illegal fentanyl on the street that it would be enough to deliver lethal doses to every Citizen, according to the DEA Administrator Anne Milgram.[7]

To combat the rising opioid problem, the state of California had attempted to hold the pharmaceutical companies accountable in court as they brought suit against a plethora of drug companies citing a public nuisance in their case California V. Purdue Pharma L.P. e.t al.[8] The state of California argued that the pharmaceutical industry had advertised opioid drugs, which subsequently led to pain pills overtaking their communities.[9] The state of California was seeking $50,000,000,000 in this lawsuit against numerous pharmaceutical companies such as Johnson & Johnson, Purdue Pharma, and Actavis.[10] However, for the first time in more than 3,300 lawsuits, the pharmaceutical industry won.[11] Judge Peter Wilson stated that “There is simply no evidence to show that the rise in prescriptions was not the result of the medically appropriate provision of pain medications to patients in need.[12] Additionally, he stated that “even if the drug makers’ marketing contained any misleading statements, the counties put forward no evidence to show that their promotional activities caused any medically inappropriate prescriptions to be written. The Court went on to say that the Plaintiff failed to prove an actionable public nuisance claim against the defendants.[13] Likewise, they found that none of the marketing materials’ identified statements were false or misleading. [14]

This is an interesting case as it could foreseeably embolden the pharmaceutical industry in their lawsuits and advertising of opioid drugs as their actions did not rise to or constitute an actionable public nuisance. Likewise, it may make state governments warrier in investing the time, resources, and energy required to take on such a massive case. While it is by no means a get out of jail free for the pharmaceutical industry as Johnson & Johnson, McKesson, Cardinal Health Inc., and AmerisourceBergen will all be paying out up to $26 Billion to settle other cases, it does create the precedent that the pharmaceutical companies will continue to rely on going forward.[15]

 

[1] Ahmad FB, Rossen LM, & Sutton P., Provisional drug overdose death counts, NATIONAL CENTER FOR HEALTH STATISTICS, CDC (2021), https://www.cdc.gov/nchs/nvss/vsrr/drug-overdose-data.htm.

[2] Id.

[3] Id.

[4] Ken Alltucker Drug overdoses surged amid COVID lockdowns; more deaths in one year than ever before, USA TODAY (Nov. 17, 2021), https://www.usatoday.com/story/news/health/2021/11/17/overdose-deaths-soar-record-level-amid-pandemic-rise-fentanyl/8629870002.

[5] Id.

[6] Id.

[7] Id.

[8] People v. Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730 (Nov. 1. 2021).

[9] Nate Raymond, California judge delivers drugmakers 1st trial win in opioid litigation, REUTERS (Nov. 2, 2021), https://www.reuters.com/world/us/california-judge-rules-drugmakers-major-opioid-lawsuit-2021-11-02.

[10] Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730.

[11] Raymond, supra note 9.

[12] Id.

[13] Purdue Pharma L.P., 2014 Cal. Super. LEXIS 24730.

[14] Id.

[15] Raymond, supra note 9.

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