Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis

Journal of Law, Medicine & Ethics, Forthcoming

30 Pages Posted: 9 Mar 2018  

Abbe R. Gluck

Yale University - Law School

Ashley Hall

Yale University, Law School, Students

Gregory Curfman

Brigham & Women's Hospital

Date Written: March 6, 2018


The devastating impact of the national opioid epidemic has given rise to hundreds of lawsuits. The plaintiffs -- who range from states, to counties, to Indian tribes, and individuals -- have cast an exceedingly broad net for defendants. They have sued not only the opioid manufacturers and the doctors who prescribed the drugs, but also the companies that distribute them, the pharmacies that sell them, and even the hospital accreditation organization that encouraged doctors to stop undertreating pain -- which they were -- two decades ago.

This is not the first major national public health litigation effort -- tobacco, fast food, and guns offer earlier blueprints -- but it has some unique features. First, unlike the litigation it most resembles -- tobacco -- the opioid narrative has a far more complicated chain of causation. Opioids, unlike tobacco, have an important therapeutic purpose; they are FDA approved as safe and effective; they are often prescribed by doctors for sound medical reasons; and then they wind their way from manufacturer, to distributor, to pharmacy, to patient. This complicates litigation because defendants can argue that intervening factors (including other defendants) make any single defendant's culpability hard to isolate.

Second, more than 400 of the opioid cases have now been consolidated before a single federal judge in a so-called "multidistrict litigation." That judge has chided the federal and state governments for punting the problem to the courts; he has made clear he thinks everyone is to blame; and has vowed to get a settlement, with systemic change as part of it, by the end of 2018 -- a breathtaking pace for resolution that makes his courtroom the game changer.

None of this is to say that litigation is the ideal way to solve a public health problem. Concerns abound about attorneys fees', conflicts of interests, inadequate settlement and the possible overreach of the presiding judge. But litigation has already spurred change in both the industry and the practice of medicine. It has played a central role in the public response to the epidemic. This article details that story.

Keywords: Opioid, Public Health, Litigation, MDL, Multidistrict Litigation, Health Law, Opiate

Suggested Citation

Gluck, Abbe R. and Hall, Ashley and Curfman, Gregory, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis (March 6, 2018). Journal of Law, Medicine & Ethics, Forthcoming. Available at SSRN:

Abbe R. Gluck (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203 432 6703 (Phone)

Ashley Hall

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

Gregory Curfman

Brigham & Women's Hospital ( email )

1620 Tremont Street
Suite 3030
Boston, MA 02120
United States
9785059696 (Phone)

Register to support our free research


Paper statistics

Abstract Views