Opioid battle shouldn’t rely on lawsuits

Process could take years when action needed now, says Lorian Hardcastle

Opioid-related deaths and injuries are a critical public health issue, with one Canadian dying every two hours due to opioids. Drug companies are now under fire for aggressively promoting opioids and helping to supply the black market, thereby profiting substantially from the suffering of others.

Beginning in the late 1990s, opioid manufacturers falsely assured the medical community that their products were not addictive and encouraged them to prescribe opioids for conditions they would not effectively treat, leading to a surge in prescriptions. Given the quantity of opioids they distributed, drug companies also knew or ought to have known that their products were being diverted to the black market.

All of these opioid prescriptions have come at a significant cost, both in terms of human health and government resources. Several provinces, including Alberta, are now suing drug companies to recoup some of their health-care costs. Those who distribute opioids, such as Shoppers Drug Mart, are also named as defendants.

British Columbia, which led the Canadian charge in suing drug manufacturers, passed the Opioid Damages and Health Care Costs Recovery Act. This law, which makes it easier to sue drug companies, permits the government to sue manufacturers independent of whether those injured by opioids choose to sue. Unlike typical lawsuits, the government does not have to identify particular individuals who suffered opioid-related injuries, prove the defendant caused their injuries, and prove the cost of health-care services provided to them. Instead, this legislation allows the government to prove that defendants caused injuries and to quantify damages using aggregate statistical evidence and information about the defendant’s share of the opioid market. Alberta is considering passing a similar law.

Although Canadian cases are still in their infancy, in August, an Oklahoma court ordered Johnson and Johnson to pay the state US$572 million for its role in fuelling this public health crisis.

But will this litigation do anything to combat the opioid epidemic?

Even if governments are awarded damages against opioid manufacturers, they may never collect. For example, U.S. opioid manufacturer Insys filed for bankruptcy shortly after agreeing to a $225-million settlement. When faced with similar lawsuits by smokers and provincial governments seeking to recoup the costs of treating tobacco-related illnesses, several Canadian tobacco companies sought creditor protection.

If governments do collect damages, the only way those funds will improve public health is if they are invested back into treating the opioid epidemic, rather than merely being subsumed into provincial coffers. But it is often notoriously difficult to convince governments to invest the necessary resources into public health initiatives.

Apart from compensating governments for health-care costs, these lawsuits may also help deter aggressive marketing practices by drug companies. While this may certainly improve public health, companies may not be deterred if the revenue generated by these products exceeds damage awards granted by the court. Deterrence is also weakened by the fact that opioid manufacturers can pass litigation costs onto consumers and other payors by raising the cost of their products.

Even if litigation discourages aggressive marketing tactics or generates damages that help to fund public health programs, this is unlikely to happen anytime soon. Similar litigation against tobacco companies has been going on for decades, without any money in sight. Therefore, it is essential that governments not wait to recover health-care costs to address this problem through evidence-based public health interventions like supervised consumption sites.