The ramifications and damages due to the opioid crisis continue to be cataloged and measured. At the same time, questions about who should be held responsible for its vast spread and persistence also remain to be settled. Whereas Purdue Pharma and some of its executives already have been accused and found guilty of conspiring to push the terribly addictive and dreadfully damaging drug OxyContin, other less well-known opioids also have been (and continue to be) sold to patients, by less familiar pharmaceutical firms and retail pharmacies. The responsibilities held by each of these members of the supply chain in turn are being addressed by state- and federal-level courts.
Some recent rulings are instructive. In particular, a massive lawsuit in New York State, initially involving hundreds of defendants, assigned part of the responsibility for the crisis and its effects to the U.S. arm of Teva Pharmaceuticals, an Israeli firm. A jury agreed with prosecutors’ assertions that the pharmaceutical firm created a “public nuisance” by misrepresenting the risk of addiction and overstating the appropriate uses of the various opioids that it produced. However, in naming this single firm, the outcome of the case does not reflect the reality: Hundreds of other pharmaceutical manufacturers also were charged with similar damages, but they chose to settle before the case reached a jury.
Another case in Ohio focused instead on retail pharmacy chains. Here too, the jury assigned responsibility to these supply chain actors, for failing to take reasonable measures when it was clear that opioid abuse was occurring. The Ohio lawsuit assigned blame to both individual locations of the national chains and the corporate headquarters of three major retailers: Walgreens, Walmart, and CVS.
Beyond the companies themselves, another case involves executives at the very top of the corporation. A judge recently rejected a bankruptcy plan for Perdue Pharma, because it protected the family owners of the firm, the Sacklers, from being held liable. But such protections arguably are unfair, considering the evidence that the family that sat at the top of the board of directors actively sought to profit from continued, risky sales of the drug, even as evidence of the damages of OxyContin became obvious and unmistakable.
Finally, several cases have alleged that regulatory authorities, as indirect members of the supply chain, also should be held accountable. These allegations suggest that it is up to legal and governmental agencies to keep watch of what corporations and supply chains are doing, and the ways in which they are skirting existing laws, to serve and protect the public.
In all these cases, the losing side has vowed to appeal, such that the outcomes remain uncertain. But the larger questions are relevant for supply chain management in any sector, though perhaps particularly so for sensitive, high-risk industries such as pharmaceuticals. When products are being sold that cause direct harm to consumers and society at large, which members of the supply chain are responsible to ensure protections are in place? The ideal answer would be, “All of them.” But when none of them act in responsible ways, how should courts apportion the blame?
- If you were a judge or member of the jury in one of these trials, how would you assign blame across the supply chain? In detail, how responsible are (a) manufacturers, (b) retailers, (c) regulatory authorities, (d) physicians, or (e) consumers for the risks associated with the sale, distribution, and use of opioids?
Source: Sarah Maslin Nir, Jan Hoffman, and Lola Fadula, “Pharmaceutical Company Is Found Liable in Landmark Opioid Trial,” The New York Times, December 30, 2021; Jan Hoffman, “Judge Overturns Purdue Pharma’s Opioid Settlement,” The New York Times, December 17, 2021; Jan Hoffman, “CVS, Walgreens, and Walmart Fueled Opioid Crisis, Jury Finds,” The New York Times, November 23, 2021