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Opioids and Opportunity

Opioid overdoses kill more than 55,000 Americans every year, and the number is climbing. Since 2002, opioid-related deaths are up more than 300 percent and are now the leading cause of death for people under age 50. The monetary cost to governments at all levels for public healthcare, treatment facilities, law enforcement, criminal justice, and jail expenses amounts to tens of billions of dollars each year.

Lawyers are likely the only industry destined to benefit in the near term from the opioid crisis devastating America. As is invariably the case with any calamity, attorneys tend to profit because they can play on both sides of the equation.

Complaints against pharmaceutical firms and wholesale distributors claim that they violated the federal Controlled Substances Act https://law.cornell.edu/uscode/text/21/801 by failing to alert the U.S. Drug Enforcement Administration http://dea.gov of suspicious opioids purchases, such as orders of unusual size, frequency or pattern. Claims against the manufacturers are usually based on allegations that the companies exaggerated the benefits of the drugs and knew they 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.

The lawsuits also claim the 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.

It is not only Big Parma and distributors who are the targets of this litigation flood. Governments are also going after physicians and pharmacists.

The claims are often based on some shocking statistics: In 2015, 259 million prescriptions for opioids were filled in the United States, an amount capable of treating every adult in the country 24-hours a day for one month. This was up from 76 million prescriptions in 1991. In 2012, 793 million doses of opioids were prescribed in Ohio, 60-times larger than the entire population of the state.

The top ten states whose physicians overprescribe the most are: Alabama, Tennessee, West Virginia, Kentucky, Oklahoma, Mississippi, Louisiana, Arkansas, Indiana, and Michigan. While you can expect a large number of lawsuits in these states, this has suddenly become a national phenomenon, impacting even the states where overprescribing is a fraction of what is going on in the top ten jurisdictions. In some of these latter states, specific counties and cities are experiencing a disproportionately massive opioid problem.

Saratoga County, New York just hired an outside law firm and gave it the following mission: to “to pursue litigation against companies and potentially physicians responsible for careless practices related to the manufacturing, distribution and prescriptions of opioid pharmaceuticals.” That’s a pretty expansive charge.

Local and state governments nationwide have had to expend massive resources in the form of medical, public health, training, and law enforcement costs on combatting the opioid crisis. They view the legal path as a way to recoup some of that expenditure. Saratoga’s initiative is one that is being replicated throughout the country and is destined to become a national phenomenon. Nassau and Suffolk Counties (NY), Dayton (OH), and a number of California municipalities are in the forefront of this national movement which is likely to quickly become a tsunami.

This is underscored by the federal government’s thus-far reluctant, uninspired, half-hearted efforts to do something about opioids, bolstered by an ideological inclination to do nothing to deter Big Pharma and its congressional minions from continuing to fuel the crisis. That means a great deal of work for lawyers on both sides of the action. You may even see state governments stepping into the issue by committing additional resources to the legal battles to come against the providers and enablers that produced this tragedy.

The Saratoga contract calls for the law firm to be compensated on a contingency fee basis. While this model is popular among many jurisdictions, it is by no means the only one. Other jurisdictions are issuing hourly billing-based as well as project billing contracts. You can bet the mortgage that law firms and sole practitioners nationwide will take full advantage of this burgeoning opportunity.