States Are Wrong To Block Local Gov’ts From Opioid Suits

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Professor Nestor Davidson wrote an article for Law360 about a major settlement two counties reached with drug companies and how it will serve as a model for thousands of other pending opioid cases being brought by local governments.

On Oct. 21, two Ohio counties reached a $260 million settlement with four drug companies, just before opening arguments were scheduled to begin in the federal opioid multidistrict litigation in the U.S. District Court for the Northern District of Ohio. The deal can serve as a model for the literally thousands of cases from cities, counties, Native American tribes and others yet to be resolved.

However, while local governments have been seeking to hold drug companies responsible for the billions of dollars the opioid crisis has cost in providing care and treatment across emergency rooms, police departments and local social service agencies, they have also had to fight a rear-guard action against the state of Ohio to defend their right to be at the litigation table in the first place. Such efforts to suppress local legal action are likely to play out in other states as well.

Indeed, local governments defending their right to litigate on behalf of their communities have every reason to fear what states would do with any recovery from the opioid industry, given the experience of the tobacco settlement in 1998. States at the time promised to use a significant portion of their settlement funds — estimated at $246 billion over the first 25 years — to address the significant health problems caused by tobacco use in the United States.

But in the two decades since, states have spent just a small portion of the resulting funds on tobacco prevention and cessation programs. According to the Campaign for Tobacco Free Kids, in the current fiscal year, for example, “the states will collect $27.3 billion from the settlement and taxes. But they will spend just 2.4% of it — $655 million — on programs to prevent kids from smoking and help smokers quit.”

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