By Danielle Barney
For the past few years the opioid epidemic has inundated the media with reports of overdose deaths and lawsuits against pharmaceutical companies responsible for the crisis. Every day more than 130 people die after overdosing on opioids in the United States.[1] Furthermore, each year prescription opioid misuse costs the US economy $78.5 billion, which includes costs related to the criminal justice system, health care, addiction treatment and general lost productivity.[2] At the height of the opioid epidemic, numerous states across the US filed lawsuits against pharmaceutical companies responsible for manufacturing the crisis. Recently, the District Court of Cleveland County in Oklahoma ruled that Johnson and Johnson must pay $572 million to the state of Oklahoma to carry out the state’s Abatement Plan, aimed at addressing the impact of the opioid epidemic.[3]
In the mid 1990s, the American Pain Society promoted the idea of pain as a fifth vital sign because the organization believed pain was undertreated and not regularly assessed in physician practices nor after surgery. The American Pain Society’s promotion led The Joint Commission, a non-profit organization that certifies health care organizations and programs in the U.S., to introduce standards for health care organizations to improve their assessment and treatment of pain. Around the same time, pharmaceutical companies relayed to the health care community that patients would not become addicted to opioids. This consequently led to health care providers prescribing opioids at greater rates, which then led to extensive misuse of opioids before opioids’ highly addictive side effects were known.
Several government agencies and states have implemented various measures to combat the opioid epidemic. Recently, the US Department of Health and Human Services provided more than $1.8 billion in funding to states to increase access to addiction treatment and prevention services. Furthermore, in response to the opioid epidemic the Centers for Medicare and Medicaid Services (CMS) removed three Communication about Pain questions from Hospital Consumer Assessment of Healthcare Providers and Systems (HCAHPS) patient experience survey, which affects financial reimbursement from CMS and other insurers. The removed pain questions asked patients if they experienced pain and whether that pain was effectively controlled during their hospital stay.
Oklahoma is among several states that are working to address the devastating consequences of the opioid epidemic. In Oklahoma, from 1994-2006 prescription opioid sales quadrupled and in 2017 the rate of opioid overdose deaths in Oklahoma was 10.2 deaths per 100,00 persons. The Oklahoma Department of Mental Health and Substance Abuse Services (OHMHSAS) implemented measures to address and combat the opioid epidemic.
On June 30, 2017 Oklahoma’s attorney general filed a lawsuit against Johnson and Johnson, as well as other pharmaceutical companies claiming the defendants caused a public nuisance and sought relief in the form of abatement of the nuisance. Findings of fact proved the defendants engaged in false and misleading marketing practices by minimizing safety issues of opioids, broadening the drug’s indication, and omitting material information. Oklahoma’s public nuisance statute does not explicitly state the relation to property and rather states a nuisance can encompass an unlawful act that endangers the health of others.
At the end of a non-jury trial, Judge Thad Balkman held that Oklahoma’s public nuisance statute was not limited to property law and encompassed the defendants’ corporate activity of misleading marketing and promotion of opioids. Judge Balkman reasoned that even if Oklahoma’s nuisance statute does require the use of property, the State sufficiently showed that the defendants used real and personal property by conducting deceptive marketing efforts in health care practices and using company cars traveling on state roads to disseminate misleading marketing messages. While Oklahoma requested relief to help solve the public nuisance created by the defendants for the next 30 years, Judge Balkman ruled that the award covered funding for only one year of addressing the opioid epidemic because Oklahoma did not prove culpability beyond that period.
The opioid epidemic is the largest public health crisis facing the United States today. Judge Balkman’s decision offers one important solution to addressing the epidemic. States now have another avenue for relief through a public nuisance theory. However, this solution is limited. As Judge Balkman noted, the text of the Oklahoma public nuisance statute was not limited to property law and could therefore encompass the type of corporate activity the defendants engaged in. While Oklahoma’s statute does not explicitly specify the nuisance must be related to the enjoyment of property, other state statutes may make the connection to property law more clear, which limits their use of the public nuisance doctrine in obtaining relief against pharmaceutical companies. However, states could utilize Judge Balkman’s alternative reasoning as to how pharmaceutical companies used real property to disseminate misleading marketing messages, contributing to the opioid epidemic.
Ultimately, the award covering only a year of funding to address Oklahoma’s opioid epidemic does not go far enough. Opioid addiction is a lifelong disease in which states must fund comprehensive prevention and treatment programs. One year of funding does not encompass what is truly needed to address the state’s opioid epidemic. This in turn may further deter states from seeking relief from pharmaceutical companies through a public nuisance theory if the value does not cover what is needed for prevention and treatment programs. Furthermore, while pharmaceutical companies’ deceptive marketing strategies significantly contributed to the opioid epidemic, they may not be the only entity to blame. As our country’s history suggests, the opioid epidemic is a multi-faceted issue that was partly caused by the health care industry’s shift from undertreating pain to over-treating pain.
While the recent decision in Oklahoma suggests one possible avenue for obtaining relief to address the opioid epidemic ravaging our country, our nation must come together to address the opioid epidemic through other means, such as more comprehensive legislation regulating pharmaceutical marketing efforts.
Danielle Barney is a 2L day student at Suffolk Law University. Prior to attending law school, Danielle was a Public Relations Account Executive within the pharmaceutical industry.
Sources:
https://www.cdc.gov/drugoverdose/data/prescribing/overdose-death-maps.html
https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis
https://www.politico.com/magazine/story/2019/08/28/johnson-and-johnson-decision-opioids-227913
https://www.addictioncenter.com/community/states-filed-suits-against-opioid/
https://www.drugabuse.gov/opioid-summaries-by-state/oklahoma-opioid-summary
https://www.jointcommission.org/about_us/about_the_joint_commission_main.aspx
https://www.leg.state.mn.us/docs/2015/other/150795.pdf
https://www.fiercehealthcare.com/regulatory/cms-hcahps-pain-management-opioid-epidemic-opps-rule
[1]National Institute of Health, Opioid Overdose Crisis, https://www.drugabuse.gov/drugs-abuse/opioids/opioid-overdose-crisis(last updated Jan. 2019).
[2]Id.
[3]State of Okla. v. Purdue Pharma L.P., et. al., No. CJ-2017-816 (D. Okla. filed Aug. 26, 2019).
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL or Suffolk University Law School.