The Role of Tort Litigation in Shaping Opioid Marketing and Regulation

Margaret Wilson


In light of the staggering economic toll of the opioid crisis, local governments, including state Attorney Generals, have made recent headlines by increasingly turning to litigation as a means of seeking funding to combat the ongoing opioid crisis and mitigate its financial burden. Thousands of lawsuits have been filed over the course of the last few years, most notably by local governments. Plaintiffs hope that litigation may lead to big payoffs, like those resulting from “Big Tobacco” litigation, but with greater local reach and although suits thus far have had relatively low settlement payouts. This piece will trace the trajectory and effects of the two major waves of opioid litigation since the early 2000s, shortly after FDA approval of OxyContin in 1996, and analyze current litigation and its potential outcomes, including the Ohio Multidistrict Litigation. I argue that tort litigation against pharmaceutical companies builds on the history of the “Big Tobacco” suits and the host of legal arguments surrounding corporate liability and responsibility that were developed in the context of major tobacco tort litigation. Throughout this piece, I will gesture to parallel concepts and effects that opioid litigation shares with other historical torts, like tobacco. Ultimately, I argue, the effects of litigation on opioid marketing and regulation are cumulative and often indirect, as the tide of public opinion turns against opioid companies, court decisions build on prior opioid suits, and litigation continues to facilitate the investigation and release of documents detailing industry practices.