Veteran experts of 1990s-era tobacco litigation warn that any quick settlement to the national opioids lawsuit may help the pharmaceutical industry avoid disclosing something important: the truth.
Hundreds of American cities, towns and counties allege the pharmaceutical industry’s reckless behavior started a roiling opioids crisis that killed 50,000 people in 2015 in alone, and have filed lawsuits.
Those cases, numbering more than 500 and growing, have been gathered together in one federal court in Ohio, where Judge Dan Aaron Polster wants to settle the suit quickly.
“People aren’t interested in depositions, and discovery, and trials,” Polster said at a January hearing. “My objective is to do something meaningful to abate this crisis and to do it in 2018.”
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Polster set an ambitious trial date of March 2019, in the event efforts to settle fail. The latest meeting in court between the parties and the judge was taking place on Thursday in Cleveland. Most attorneys involved agree it could be the most complex lawsuit ever brought before a federal court.
The judge is “clearly going down two parallel roads”, said Joe Rice of the law firm Motley Rice, a co-lead attorney in the case. Polster said on Thursday he is developing both a litigation and settlement track for the suit. Rice said he agreed fast resolution would be best for the American public, and said it was the “responsible thing for all parties to do”.
“There is a place for opioids in our society. There’s probably no place for an OxyContin 80 milligram pill,” he said, referring to a high-dose opioid made by Purdue Pharma, one of the defendants.
Almost 100 people are dying every day across America from opioid overdoses – more than car crashes and shootings combined. The majority of these fatalities reveal widespread addiction to powerful prescription painkillers. The crisis unfolded in the mid-90s when the US pharmaceutical industry began marketing legal narcotics, particularly OxyContin, to treat everyday pain. This slow-release opioid was vigorously promoted to doctors and, amid lax regulation and slick sales tactics, people were assured it was safe. But the drug was akin to luxury morphine, doled out like super aspirin, and highly addictive. What resulted was a commercial triumph and a public health tragedy. Belated efforts to rein in distribution fueled a resurgence of heroin and the emergence of a deadly, black market version of the synthetic opioid fentanyl. The crisis is so deep because it affects all races, regions and incomes
However, veterans of state lawsuits against tobacco companies, to which the opioids case is often compared, warn a push to settle quickly could neglect a once in an opportunity to investigate the conduct of pharmaceutical manufacturers and distributors being sued. One of the most hard-won victories from tobacco litigation, some involved said, are millions of documents preserved for the public in the course of the long, historic case, which the leading cigarette companies operating in the US eventually settled for an estimated $246bn.
Polster acknowledged in January the federal courts are the, “least likely branch of government to try and tackle this”. He continued, “But candidly, the other branches of government, federal and state, have punted. So it’s here.”
Usually, “discovery”, or the process of obtaining evidence from the opposing side, is destroyed after a settlement.
“Tobacco is a great example of how adjudication is important to produce the kind of information that is important to legislators,” said Elizabeth Burch, an expert on mass litigation and professor at the University of Georgia. “If you go straight toward settlement, with guns blazing, you lose a lot of that public information, and you lose a lot of public participation.”
The tobacco database houses more than 90m documents. Together, those documents reveal inner workings of cigarette makers such as British American Tobacco and Philip Morris. Examinations of the database have resulted in more than 1,000 academic articles, news reports and government papers.
“The absolute most important thing to come out of the tobacco litigation was the discovery,” said Stan Glantz, a professor at the University of California San Francisco and keeper of the Truth Tobacco Industry Document Database.
Glantz was the first person to receive “purloined” insider tobacco documents in May 1994. An unsolicited box of papers was delivered to his office with the return address “Mr Butts”, a cartoon cigarette from the Doonesbury comic strip.
During litigation, tobacco companies attempted to “paper” plaintiffs – that is, send them so much irrelevant information they would never find what they were looking for. Plaintiffs wanted about 1.5m documents, and tobacco companies sent about 24m.
That strategy was “probably one of the biggest strategic blunders they ever made”, said Glantz. Within the documents is information on lobbying, scientific obfuscation and strategizing. It quickly became, and remains, a resource for investigating not just tobacco, but influence peddlers working for oil companies and junk food companies.
“Of course, what happens is the defendants in these cases obviously want to limit the discovery process to the greatest extent that they can,” said Hubert “Skip” Humphrey, the attorney general of Minnesota from 1983 to 1999. Minnesota was one of the first states to sue tobacco manufacturers for harming its residents, and a holdout when there was a push to settle without publishing discovery.
Humphrey wanted companies to “come clean”. As a result, the five years he worked on tobacco litigation became “pretty lonely”, he said, as he fought to preserve discovery for posterity when most of his colleagues disagreed.
“It wasn’t about the money. The money was only a means to have people who were injured compensated, to the extent we were able to accomplish that,” said Humphrey. “They needed to come clean. They needed to stop what they were doing, and needed to pay”.
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