I’m not convinced that the State of North Dakota should be successful in its lawsuit against the opioid industry.
Clearly a district court judge feels the same way. Yesterday Judge James Hill of Burleigh County tossed North Dakota’s suit against Purdue Pharma.
In that suit, Attorney General Wayne Stenehjem accused the company of engaging in “an aggressive and successful marketing campaign designed to persuade prescribers and patients that opioids can and should be used for chronic pain.”
Judge Hill’s reaction was…well yeah. They’re a company marketing a drug approved by the FDA to treat chronic pain.
“The state’s effort to hold one company to account for this entire, complex public health issue oversimplifies the problem,” Hill wrote in his opinion.
The opioid crisis is very real, and there’s plenty of blame to go around for it. Making the pharmaceutical industry generally, and Purdue Pharma specifically, responsible for the whole shebang is just nonsense.
This quote from Judge Hill, however, is even more important for the purposes of this post: “Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to customers.”
Let’s think about this in another context.
Stenehjem and the State of North Dakota are arguing that Purdue marketed their drug as an effective treatment for chronic pain, but many people have abused the drug in various ways, and now Purdue is responsible for that.
Couldn’t we also argue that gun companies market their products as an effective way to fire bullets? Some people fire bullets negligently, or with criminal intent, but is that the problem of the gun industry?
Is McDonald’s responsible for people eating too many of the hamburgers they market as delicious?
There are factions of our society who do actually believe that gun companies are responsible for gun deaths, that McDonald’s is responsible for diabetes and heart disease, etc., etc.
Do we want the State of North Dakota to be a part of those factions?
It may well be that Purdue Pharma has acted negligently or dishonestly, and to the extent they have, they can and should be held responsible. What they shouldn’t be held responsible for, however, are the irresponsible choices of others.
Which is the point Hill was making, I believe.
His tossing of this lawsuit is hardly the end. “The court’s ruling in the area of consumer protection law has much broader implications than just this one significant case, potentially negatively affecting long-standing consumer protection law in North Dakota,” Stenehjem has said in response to Hill’s ruling. “I am confident that the State has strong claims against these defendants, whose unconscionable actions demand they be held accountable, and there are well-reasoned arguments that support our position.”
This litigation is far from over. Indeed, Purdue has already lost in other jurisdictions, paying out hundreds of millions of dollars to settle even as other suits move forward.
But, again, if Purdue loses it should be because of Purdue’s actions. Not because other people used Purdue’s products irresponsibly.
Protecting consumers from the malfeasance of the companies they transact with is one thing.
Protecting consumers from themselves is quite another.