In 1998, the four largest tobacco companies—Philip Morris, RJ Reynolds, Lorillard, and Brown & Willamson—settled Medicaid lawsuits with Attorneys General of 46 states for recovery of tobacco-related health-care costs. The agreement, dubbed “The Tobacco Master Settlement Agreement” arose because cigarettes were killing approximately 440,000 Americans each year and tobacco was responsible for in excess of $150 billion in medical costs.
Opining in an editorial for Law360.com, Peter Kelso and Kristen Knorn, both of the environmental and management consulting firm, Roux Associates, suggest that opioid litigation, after 7 years and $14 billion in settlements and counting, should follow a similar tack.
The co-authors write that as of the end of last year, the federal government has provided states with a total of $18 billion in funding across two presidential administrations to help manage the ongoing problem. However, the fed’s response to opioid litigation has been “underwhelming in comparison to the historical costs for opioid-related health care, criminal justice and social services that states, counties and municipalities have claimed.”
A solution, Kelso and Knorn write that may work to end opioid litigation once and for all, would be for Congress to “exert its oversight authority and step in to broker a global settlement.”
Why would Congress be in a unique position to not only put an end to opioid litigation, but to the epidemic itself, which caused the deaths of over half a million Americans from 1999-2019? Kelso and Knorn say that “Congress can define an abatement strategy and develop the state and national legislative framework necessary to stop the infiltration of addictive opioids and provide treatment to the current exposed population.”
Failure to come up with a resolution similar to the Tobacco Master Settlement would ensure a marathon slog approach to litigation, where lawsuits would be filed county by county, tribal nation by tribal nation, state by state, municipality by municipality, etc. If this piecemeal approach continues, the co-authors suggest, over the years, as appeals are filed and settlements negotiated, thousands more American lives will be lost.
Congressional intervention is necessary considering the regulatory failure to reign in the “importation of raw opiates on a massive scale [that] enabled the over manufacture and distribution of highly addictive prescription drugs to the public,” Kelso and Knorn write.
