It wasn’t a coincidence that the corporate suits showed up for the Mingo County Commission meeting last May. On the agenda was a vote about whether the 26,000-person county, deep in West Virginia coal country, should join a lawsuit against the nation’s three major drug distributors for their role in the region’s opioid epidemic. (Collectively, the three companies had distributed 423 million pills in West Virginia over a five-year period.) One of those distributors, $121 billion Cardinal Health (CAH), had three representatives in the audience—one of whom had travelled all the way from Washington DC—“to educate the County Commission” about aspects of opioid litigation in surrounding counties.
That a Fortune 15 corporation would send even one person to such an event says something about the stakes involved in litigation targeting companies in the opioid supply chain. Since then, the stakes have only grown; cases against distributors like Cardinal and opioid manufacturers like Purdue and Teva (TEVA), which are accused of negligence and aggressive sales tactics, have proliferated across the country in recent months. All levels of government, hurting from the toll the public health crisis has had on budgets, are taking action, from municipalities (Kermit, WV; Chicago, Il, Everett, WA) to counties (Mingo in WV; Nassau in NY; Orange in California) to states (Mississippi, Ohio, New Mexico). And that’s just a sampling. There’s also the multi-state investigation into various opioid manufacturers that a bipartisan coalition of 35 state attorney generals launched in June, and Congressional and Senate investigations into the matter underway.
The growing charge has led many to wonder: Will the opioid crisis hand Big Pharma its Big Tobacco moment? In 1998, cigarette-makers made a $248 billion civil settlement—the largest-ever—with 46 states to snuff out public health-related suits.
Not so fast, says Ken Feinberg, the attorney who oversaw claims administration after 9/11, the BP oil spill, the Boston Marathon bombing and most recently, the Volkswagen emissions scandal. He points out a couple factors that make it hard to assign blame when it comes to the opioid epidemic—pain meds are lawful drugs, approved and regulated by the federal government, and there are “a whole lot of intermediaries: in the distribution process. “You’re bringing litigation against companies who appear to be complying with the law.”
He says the opioid suits could also potentially go the way of the gun industry. In the early 2000s, gun makers successfully lobbied for protection from such lawsuits.
Feinberg admits “much is up in the air,” but he sees an even more fundamental problem. “Even if the litigation is successful, what will you do with this money?” He says giving it to surviving victims may be problematic, given their addictions. As for paying for the nation’s crisis, well, the bill is just too big. Says Feinberg: “I don’t think there’s enough money to cover it.”
A version of this article appears in the Oct. 1, 2017 issue of Fortune with the headline “A Lawsuit Deluge for Opioid Inc.”
