KEVIN LEININGER: Lawsuits targeting opioid industry should seek the truth, not just deep pockets

The costs of opioid abuse are real, but who should pay them? (AP photo)
Kevin Leininger

Allen County Health Commissioner Dr. Deborah McMahan has compared the wave of lawsuits threatened or filed by Fort Wayne, Allen County and other governments with ultimately successful efforts a generation ago to hold tobacco companies responsible for the cost related health problems.

The analogy is apt, but should raise concerns among those who value not only corporate accountability but personal responsibility.

In 1998, major tobacco companies settled Medicaid-related lawsuits filed by 46 states by agreeing to pay at least $206 billion over the first 25 years and more later, which would in turn reimburse the states for medical expenses and fund anti-tobacco programs. The companies also agreed to curtail certain marketing practices.

Although the tobacco industry had been accused of some shady practices, smoking had been linked to lung cancer since at least 1950, and the U.S. Surgeon General made that connection official in 1964. Perhaps that’s why Mississippi Attorney General Mike Moore explained the issue this way in 1994: “(The) lawsuit is premised on a simple notion: You caused the health crisis, you pay for it.”

When Mayor Tom Henry this week announced Fort Wayne would follow Allen County’s legal lead and file suit, his stated rationale was similar: “To hold accountable the companies responsible for bringing opiates into the community and making the opioid epidemic possible.” The city’s lawsuit, he noted, would target the nation’s top three wholesale drug distributors with combined annual revenues of $400 billion.

That’s a lot of money. Why shouldn’t some of it come to Allen County, where the estimated 40,000 people with opioid-related problems add to the cost of health care and criminal justice?

But the production and distribution of a legal and heavily regulated product should not make a company liable for the product’s misuse any more than a private company’s legal profits should be viewed as community property by public officials faced with the admittedly daunting financial challenge of dealing with problems caused by that misuse. Without a credible claim of negligence or nefarious intent, the opioid lawsuits could turn into just another but very immense example of “nuisance” litigation intended not to punish wrongdoing but to produce a hefty financial settlement.

Fortunately, some local officials are making that very point.

McMahan spoke not only of bringing “much-needed funds back to our community” but about how companies have “allegedly exacerbated the opioid crisis.” County Commissioner Nelson Peters was even more on point, saying he did not want to minimize the need for personal responsibility but concluding that a lawsuit is justified because “It’s not fair to go to the taxpayer to support a problem that may have been caused by the manufacturers.”

Determining that culpability and assigning an appropriate degree of liability if any will — or at least should be — the goal of these lawsuits.

The Florida legal firm Levin Papantonio, one of countless firms involved in the more than 100 lawsuits filed by state and local governments, justifies the legal onslaught this way: “The complaints typically allege the wholesale distributors violated the federal Controlled Substances Act by failing to alert the U.S. Drug Enforcement Administration of suspicious opioids purchases, such as orders of unusual size, frequency or pattern. The claims against the manufacturers are based on allegations the companies exaggerated the benefits of the medication and knew the drugs were being overly prescribed, yet failed to warn doctors of the extremely addictive nature of the narcotics and the need to strictly limit the dose.”

In addition, the firm states, “The lawsuits also claim the pharmaceutical companies lobbied politicians and doctors in an effort to artificially increase the use of opioids, and willfully allowed the drugs to enter the black market.”

If true, the companies will deserve what they get. But let’s at least demand evidence of malfeasance before turning the pharmaceutical industry into a villain responsible for any and all uses of its products. As I noted way back in 1995, lawsuits forced fast-food restaurants to use cups printed with “Caution: contents hot.” Knives come with labels urging “Caution: This cutting tool is extremely sharp.” Automotive sunshades warn they should be removed before driving.

As a moral matter, companies that profit from opioids should be financially involved in combating an epidemic that claims an estimated 55,000 American lives every year. But as a matter of law, they should be compelled to do so only if the allegations of nefarious or illegal tactics are true. Hopefully, officials filing the lawsuits will want the truth as badly as they want the cash.

This column is the commentary of the writer and does not necessarily reflect the views or opinions of The News-Sentinel. Email Kevin Leininger at kleininger@news-sentinel.com or call him at 461-8355.

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