Public Health in the Opioid Litigation

Abstract

Today, the opioid crisis is playing out in the nation’s courts. Litigants have taken a microscope to defendant opioid companies, whose misconduct ignited and exacerbated the opioid crisis. As the litigation continues, one could imagine numerous ways its resolution could contribute to the end of a mutli-decade overdose crisis and prevent future ones. Options include holding defendant companies accountable, releasing previously secret information for research on root causes of the epidemic, and injunctive relief prohibiting future misconduct. Unfortunately, to date, the litigation has not been so capacious. Rather, the participants—judge included—have been preoccupied with rapid monetary settlement. Though understandable, attempts to obtain rapid monetary relief take a narrow view of public health. That is, we will help the most readily identifiable victims, with less regard for structural factors that led to the crisis in the first place. This avoidance of structural change is at odds with public health and fails to meet this moment, defined by the most urgent public health crisis in modern history, the COVID-19 pandemic.

To explain why the litigation participants have pursued rapid monetary settlement, this paper uses the lens of agency. As will be shown, the opioid litigation is an agent of public health. That is, given the litigation’s tight connections with public health, it must represent the broad health of the populace. The paper then identifies numerous incentive problems that create misalignment with public health. Viewed in this light, the pursuit of rapid monetary settlement becomes more understandable—though not justifiable. This paper offers solutions for curing these agency problems and ensuring that public health is properly represented in future public health litigation.

If there is any time to be capacious as to the scope of public health, that time is now. While corporate misconduct plays a significant role in the spread of COVID-19, it is even more relevant to the opioid crisis, a public health emergency initiated and exacerbated by defendants in the litigation. Therefore, relief must consider not only how to help opioid victims, but to release as much information as possible about root causes and to discourage the misconduct that helped precipitate the epidemic. In other words, the court can and must take a deeper look at broader relief that benefits more people on a longer time scale. Expanding the scope of public health in the opioid litigation could yield more robust public health benefits for current and future generations. It could also create lasting precedent by expressing the norm that sales revenue and economic growth must not come at the expense of human life. Such a norm, operationalized through law, could offer significantly more enduring value than a one-shot bolus of money.

This paper, and its companion, together offer a new way of conceiving of public health litigation to maximize its benefits. This conception is grounded in a broad definition of public health. It is too soon to forsake public health for feasibility or realism; in fact, this paper suggests extremely practical ways the judge and litigants can improve the impact of the opioid litigation within civil procedure’s bounds.

Keywords: Opioids, Public Health, Federal Courts, Multi-District Litigation, Addiction, Regulation, Medicine, Health Care, Accountability