Local Response to Opioid Crisis More Combative than Preventative
Unable to remedy the effects or sufficiently address the causes of the ongoing opioid crisis, county, city, and state governments across the country have launched a legal onslaught against the actors they hold most culpable: Big Pharma. Over the past year, what began as a few state attorneys general and metropolitan mayors announcing their intention to sue the pharmaceutical companies responsible for the excessive manufacturing, marketing, and distribution of prescription opioids has evolved into a nationwide phenomenon — with additional local governments opting in nearly every day.
Apart from some of the more prominent cases (e.g., New York City, Seattle, Louisville, Indianapolis, Chicago, Cincinnati, Philadelphia, Nashville, and Baltimore) that have attracted widespread attention, most legal challenges from smaller municipalities have escaped broader notice. FiscalNote, however, used its local monitoring technology to parse the text of city, town, and county council agendas from tens of thousands of online sources, finding that the list of ongoing or anticipated lawsuits is quite extensive. As of the end of February 2018, nearly 500 counties and 300 cities and towns had either officially filed or publicly discussed filing opioid-related lawsuits against opioid manufacturers and distributors. Their goal? To recoup the localized financial costs of the opioid crisis, whether they be related to medical treatment, economic impacts, or lost productivity.
The collection of counties and cities filing suit, however, is not necessarily the list of localities you might expect. Arkansas has emerged as the most litigious state thanks to massive class action lawsuits sponsored by associations representing both its cities and counties. Nearly all of the 75 counties in the state had joined the lawsuit, as of the end of February. Wisconsin, Ohio, Iowa, Massachusetts, and New York make up a second tier of the most litigious states, with each hosting approximately 40–70 municipalities that have publicly considered or filed lawsuits.
Counterintuitively, neither opioid prescription rates nor drug overdose mortality rates — two common measures of opioid abuse — seem to be indicators of whether a state’s localities are likely to mount litigation. While Arkansas had the second-highest statewide opioid prescription rate in the country in 2016, Wisconsin, Iowa, New York, and Massachusetts each had rates below the nationwide rate of 66.5 prescriptions per 100 people. Meanwhile, while Ohio and Massachusetts had the second- and seventh-highest overdose mortality rates in the nation that year, Wisconsin, New York, Arkansas, and Iowa were ranked just 26th, 29th, 37th, and 46th, respectively. In other words, the states in which localities have mounted the most aggressive legal campaigns against pharmaceutical companies are not necessarily the regions that the opioid crisis has hit hardest across the board.
More granular county-level data reinforces this conclusion: the set of counties that have filed or discussed filing lawsuits exhibits only a slightly higher median opioid prescription rate (74.8 prescriptions per 100 people) than the median rate for all counties nationwide (72.9). Additionally, only two of the 10 counties nationwide with the highest prescription rates had taken public action regarding opioid litigation at the time of FiscalNote’s research (Whitley & Bell counties in Kentucky). In fact, despite housing 6 of the 10 counties with the highest prescription rates in the nation, Virginia had been nothing more than a passive observer to the flurry of litigation until March 14, when Dickenson County and the city of Alexandria filed the first lawsuits in the state.
Collectively, this data suggests that a wide range of factors — likely including a host of legal, financial, personal, emotional, and political motivations — best explains the avalanche of opioid-related lawsuits. Not all localities devastated by the opioid crisis have taken or even considered legal action, and not all of the localities taking legal action have been devastated by the crisis.
Moreover, many of the states in which localities have most frequently pursued opioid litigation are the same states that have been much slower to enact actual policy change addressing the effects of opioid addiction. According to data from FiscalNote’s issues management software, from the beginning of 2016 to the end of February 2018, state legislatures across the country enacted 249 bills regulating, addressing, or referencing opioid addiction and abuse. Here, Illinois has led the charge, enacting 23 such bills, with Virginia (16), Tennessee (14), Michigan (13), and New Jersey (13) following close behind. Meanwhile, excluding the ever-active New York state legislature (11 enacted bills), the states hosting the most local opioid lawsuits — Arkansas, Wisconsin, Ohio, Iowa, and Massachusetts — have enacted only 15 such bills combined over the same timeframe. What remains unclear is whether these states have made a conscious choice to prioritize litigation over legislation or whether the lack of state-level policy change itself has necessitated local-level legal action. Either way, the states that spend more time addressing opioids in local council meetings are, by and large, spending less time addressing the issue in their state capitals.
