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The Role Of Lawsuits In Addressing The Opioid Crisis


President Trump is calling on his attorney general to sue the drug companies making opioids. This comes after New York became the latest state to file suit against opioid manufacturer Purdue Pharma. Other state and local governments have already filed hundreds of lawsuits against Purdue and other drugmakers for their role in the deadly opioid epidemic. The wave of lawsuits is reminiscent of litigation against tobacco manufacturers. Joining me now is Richard Ausness, a law professor at the University of Kentucky and author of a paper about the role of lawsuits in addressing the opioid epidemic. Welcome to the program.


LUDDEN: What exactly are these drug manufacturers being accused of?

AUSNESS: Well, actually, there are several sets of defendants. In the case of the manufacturers, the claim is that they created, through fraudulent means, a demand for opioids in the case of chronic pain, which was not the practice prior to their efforts.

LUDDEN: And you said there's other targets of lawsuits.

AUSNESS: Yes. The distributors and the retail sellers have also been sued. Where they have gotten into trouble is that they haven't monitored suspicious orders. And there have been cases where literally millions of doses have been shipped to small communities, clearly in excess of any legitimate demand.

LUDDEN: If the federal government brings its own lawsuit against these companies as President Trump has called for this week - is that just going to duplicate what states and localities are doing? Or does the federal government have a different role here?

AUSNESS: Well, I don't think it will completely duplicate it. There may be some overlap. But most of the federal statutes are designed to recoup costs that the federal government expended, whereas at least some of the claims the state and local governments have brought are really aimed at trying to receive compensation for loss of the quality of life, police and medical expenses that have been incurred as a result of opioid addiction.

LUDDEN: So do you think that all these suits against drug manufacturers - you know, is it just the cost of doing business? Or will it somehow shift the way opioids are prescribed in the end? Will it have some sort of impact even if, in the end, it doesn't ruin a drugmaker?

AUSNESS: Well, it certainly will have some effect on their behavior. Several of the drug companies - the manufacturers - have said they're going to reduce the amount of opioids that they produce. The thing is that litigation, for the most part, is simply a transfer of money. It doesn't really get to the root of the problem. The problem is you have all of these addicted people. And you need programs to try to get them back to where they were.

LUDDEN: If we do see settlements come out of these lawsuits - you know, beyond a monetary, you know, punishment to a company, isn't there some other way, like, in a settlement that the company can be forced to do something? I don't know. Didn't the tobacco companies have to kind of put out, you know, labels saying, hey - this is a bad product - it's dangerous - and do something to kind of try and address this epidemic?

AUSNESS: In theory, yes. The problem is that the settlement is negotiated not so much by the governmental entities but by plaintiffs' lawyers. And without meaning to suggest they're corrupt or anything, they're concerned with getting the lawsuits settled. They're concerned with the amount of the settlement because they get a certain percentage. They don't get anything from requirements that drug companies behave in a certain way in the future. That's just - there's not an incentive for them to focus on that. And what the settlement process usually involves is trade-offs. The - if the drug companies are forced to, let's say, tell doctors not to use opioids for the treatment of chronic pain, they're going to be willing to pay less into a cash settlement.

LUDDEN: Richard Ausness is a law professor at the University of Kentucky. Thank you for joining us.

AUSNESS: My pleasure.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.