Brief of Amici Curiae American Medicine and Public Health Historians and the Organization of American Historians in Support of a Settlement Agreement Including Broad Transparency Provisions in the Interest of Future Research
27 Pages Posted: 23 Jan 2020
Date Written: September 12, 2019
Addiction is in some respects an intensely individual experience; it grows out of uniquely personal histories and often severs the bonds that tie a victim to potential communities of support. At the same time, every victim of the opioid epidemic in America was caught in a web of circumstances that stretched far beyond the grasp of individuals and individual communities. The list of these circumstances is a long one; it includes the potency of the drugs themselves, the power of marketing methods honed over decades by a resourceful and ill-regulated industry, an imperfect and inequitable health care system, a lack of adequate treatments for patients living with chronic pain, and a prevailing culture that views substance abuse through a moral rather than medical lens. These interlocking factors produced their most devastating effect in places where deepening economic insecurity made people vulnerable to what a landmark study on the subject termed “deaths of despair.” The scope of the resulting crisis is such that no settlement, no matter the amount of damages, can aspire to repair all of the harm done, if only because so much of the loss incurred is of the kind that cannot be repaid or repaired.
Nonetheless, amici believe in the possibility of a successful settlement that could serve several critical interests of the public. Among these interests is access to information. The concealment of information about the abuse potential and distribution patterns of opioid painkillers allowed the opioid crisis to take root in the first place and to grow to its current dimensions. Since secrecy fueled the crisis, no just and genuinely remedial settlement can be reached unless it honors the public’s right to know and secures the conditions for its effective exercise into the future. As scholars, amici regard it as their mission to bring to light the largely hidden web of social and economic forces, corporate practices, cultural beliefs, and political decisions in which the victims of the crisis were trapped. While amici welcomed this Court’s recent decisions to unseal illuminating documents obtained in discovery in the above-captioned matter, they also believe that a prospective settlement should take additional steps to guarantee full and permanent access to the records that will enable scholars and policymakers to develop evidence-based measures aimed at remedying the crisis in future years. A settlement exclusive of such provisions, amici fear, might entail yet another irreparable loss.
In this regard, the parallels between the tobacco and opioid litigation hold valuable lessons. In both cases, the profits accumulated by the defendants in selling an addictive product, however considerable, were dwarfed in the end by the resulting medical costs and loss of productivity not to mention the loss of life and limb. This means that in the case of tobacco no more than in that of opioids there could be a realistic hope of devising a settlement that compensated all victims and met all legitimate expectations. On the specific issue of access to information, however, there is a broad consensus that the 1998 tobacco Master Settlement Agreement (MSA) between the major U.S. cigarette manufacturers and the States succeeded beyond expectations. In what follows, then, amici outline the MSA’s key transparency provisions, highlight their implications for tobacco-related research and policymaking, and argue that any settlement agreement in the instant MDL should include provisions drawn along the same lines.
Keywords: complex litigation, products liability, public nuisance, transparency, public health, opioids
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