Litigation Plays an Important Role in Addressing the Opioid Crisis, Gluck Says In Coif Speech

Just as there are multiple causes that led to the opioid crisis, multiple responses are needed to address it, said Abbe R. Gluck, professor of law and the faculty director of the Solomon Center for Health Law and Policy at Yale Law School, at Georgia State Law’s Order of the Coif Distinguished Visitor Lecture on March 27, co-sponsored by the Center for Law, Health & Society.

“Law alone can’t solve a public health crisis of this scale, but as lawyers, our hope is law – whether legislative, regulatory or litigation – can be as productive a partner as possible,” she said.

One important way litigation is helping is by framing a narrative about responsibility in the opioid crisis. Initially, lawsuits were primarily brought against drug manufacturers and doctors, but plaintiffs have begun to cast a broader net, holding more entities responsible, including pharmacies and drug distributors. According to Gluck, these entities may be re-conceiving how they see their role going forward as a result of these lawsuits.

But the wide net of responsible parties also makes litigation strategy difficult. “Courts have already expressed concern that liability is going to be hard to find for anyone kind of defendant because there are so many different links of the causative chain,” Gluck said.  This differentiates opioid crisis litigation significantly from the public health litigation to which it is most often compared, big tobacco. In addition, unlike tobacco, opioids have been approved as safe, effective and needed.

The most significant development in the opioid crisis is the consolidation of lawsuits into a multi-district litigation (MDL), the same type of litigation used for the NFL concussion cases.

More than 97 percent of MDLs settle, Gluck said. “Case consolidated into MDLs tend to be those with many parties and many intractable problems. The only way to get relief is to have some kind of universal settlement.” But the question is whether the settlement will be enough to address the problem.

“If the remedy isn’t efficient, all this energy focused on the litigation could have the detrimental effect of taking the wind out of the sail of what would be more positive change,” Gluck said. “Either way, litigation has certainly set the agenda and raised the profile of the crisis.”