Is the Opioid Litigation the New Tobacco?
A recent news story in a Cleveland, Ohio paper described the lawsuit that the state attorney general is launching against five companies that manufacture opioids, saying there were “6 things to know” about this litigation. One of those things was that it draws comparison to the multi-state litigation against tobacco, launched by state attorneys general, nearly 20 years ago. (In fact, the complaint even makes this comparison explicitly.) But is the opioid litigation really the next tobacco?
We agree there are certain similarities between the two litigations:
-There’s a legal product that carries a particular risk with it of addiction.
-The addiction can lead to harm to individuals and, more generally, to public health.
-The costs of that harm are borne by the state—and not just monetary costs of treating people for cancer or opioid addiction, but also public health concerns.
-Many people frame the issue in terms of personal responsibility: individuals make their own decisions to smoke, or to ask their doctor for pain pills. But others, including the plaintiffs, use a frame that places blame on the industry, claiming that ads or misinformation misled both doctors and users to ignore the risks until it was too late.
So, yes, there are some similarities, but in what ways are they different? Joe Rice, a plaintiff attorney from Motley Rice, recently spoke about some of the differences in an NPR interview. He discussed the fact that 1) opioids are FDA approved, 2) they are prescription drugs, so they require a doctor who acts as a learned intermediary, and 3) they offer an actual benefit. Each of those is a definitive difference that will undoubtedly play a role at trial, but we would like to note an additional difference between these litigations: Back in the late 90s, no one had experience with litigation like the tobacco litigation, whereas prospective jurors today will be very familiar with this type of litigation—the tobacco litigation itself.
What could this mean? This means that jurors will be walking into jury selection with attitudes and beliefs about such litigations and how they should be handled. They will have knowledge of previous verdicts and opinions on whether litigation is an effective remedy to the public health issues we are facing. And they will have strong ideas—based on their personal experience and often, developed over decades—about who is at fault in these cases.
So while the opioid litigation may look like the next tobacco litigation, it actually comes with much more baggage. We would recommend unpacking and examining that baggage carefully, because in this litigation, preparing for what jurors think about the current case isn’t enough. You will also have to be prepared for the cases it reminds them of.
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Tracey Carpenter, Ph.D. and Susan Chiasson, Ph.D. started Carpenter Trial Consulting in 2010. They each have extensive experience in high-stakes civil litigation and specialized expertise in how jurors analyze evidence, assess witnesses, and arrive at verdict decisions.
