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Edward T. Kang, Kang Haggerty & Fetbroyt Edward T. Kang, Kang Haggerty & Fetbroyt

While the country has been focused on the tragic losses and economic fallout from the coronavirus pandemic, another plague, a man-made one 20 years in the making, continues to quietly rage in the background: the opioid crisis. The opioid epidemic was a perfect storm, caused by years of over-promotion, over-prescription and dangerous marketing campaigns. Integral to this “perfect storm” was not just the drug manufacturers’ conduct, but also third parties, such as private equity and consulting companies, who all played critical roles. Unfortunately, this crisis has taken a turn for the worse. Authorities nationwide have reported upticks in opioid overdose deaths, which sadly have been exacerbated by social distancing measures and the reduction in critical government funds as attention is turned to fighting COVID-19. As multiple waves of opioid litigation have come and gone, from personal injury actions to class actions, to more recently, suits brought by state, city and local governments, the question remains, who does the responsibility of the opioid crisis rest with? Does it remain solely with the pharmaceutical manufacturers, or does justice also require holding other third parties, such as pharmacies, distributors, private equity firms, and consultants liable for their critical role in the crisis?

Learning from past public health tort litigation, the current wave of opioid litigation brought by government plaintiffs, who are armed with more robust resources, have had the most success. Typically, these actions are brought asserting state-based public nuisance, fraud, unjust enrichment, and other state law claims. See, City of Philadelphia v. Allergan, Philadelphia Court of Common Pleas, No. 180102718; City of San Francisco v. Purdue Pharma, Case No. 3:18-cv-07591-CRB (N.D. Cal. Sep. 30, 2020); State v. Purdue Pharma, C.A. No. N18C-01-223 MMJ CCLD (Del. Super. Ct. Feb. 4, 2019); and State v. Purdue Pharma, C.A. No. PC-2018-4555 (R.I. Super. Aug. 16, 2019). There have also been several ongoing lawsuits brought under the False Claims Act against drug manufacturers as well as specialty pharmacies for their role in the crisis (see, United States v. McKesson, No. 19-cv-02233-DMR, 2020 WL 4805034, (N.D. Cal. Aug. 18, 2020) and United States v. Insys Therapeutics, Case No. 1:19-cr-10191-RWZ (D. Mass)).

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