The Opioid Litigation Unicorn

Abstract

This Article argues that these and other expectations surrounding the opioid litigation require some recalibration. There is no doubt that some of this enthusiasm has been generated by parallels drawn to the 1998 Tobacco Master Settlement Agreement (MSA).' However, those parallels themselves need tempering. More importantly, the role of opioid litigation needs a context broader than pharmaceutical misconduct-one that better expresses the broader issues causative of and raised by the opioid overdose epidemic. While the goals that underpin the litigation are important, they are relatively minor compared to the broader features of the opioid epidemic, particularly the opioid overdose crisis. These are issues that litigation-or even an exceptionally well-crafted settlement are unlikely to solve. The arguments advanced here are, first, that concentrating on the MDL litigation may endorse the flawed gateway or vector analysis of the opioid overdose epidemic. Second, any compensation derived from successful prosecution of the litigation (or, more likely, its settlement) while not insignificant is more likely to enrich the plaintiffs (politically) and their attorneys (financially) than make a major impact on the social and healthcare costs already incurred or begin to cure the adverse social determinants of health that underpin the epidemic. Third, even when measured against the flawed tobacco settlement of 1998, any settlement is unlikely to have a positive long-term impact or any major public health role after the checks have been written and cashed. Overall, this Article takes the pessimistic position.