If the evidence is that the impact of drugs is as severe as the Americans allege – people becoming chronically addicted and unable to keep working, losing their jobs and income – it could well be that a class action is in the wind for Australia.
The US opioid epidemic has been described as the worst drug crisis in American history. Australia has so far evaded the damage that has led to an historic class action against opioid manufacturer Purdue Pharma. But as opioid use increases in Australia, how far are we from a similar action?
They’re the American-British family worth more than most of Hollywood put together. But despite their estimated US$13 billion net wealth, most people have never heard of the Sackler family. Until recently.
Lawyers around the world sat up to pay attention in February 2019, when one of the world’s largest-ever class actions was brought against members of this formerly secretive, multi-billion-dollar dynasty.
More than 500 cities, counties and tribes across the US filed a united lawsuit against Sackler-owned pharmaceutical giant Purdue Pharma, the company infamous for developing and distributing a brand of pain-relieving opioid called OxyContin. Eight Sackler defendants were exposed as board members and operating officers of Purdue Pharma. They are accused of helping to fuel, and profit from, the US opioid epidemic through aggressive marketing tactics that vastly underestimated the addictive qualities of OxyContin.
And while the American crisis and ensuing legal battle may seem far removed from Australia, a leading consumer rights and class action lawyer says an opioid-related class action could well be “in the wind for Australia”.
“If a person develops a crippling addiction from a drug prescribed for common pain problems, and they’ve relied on representations that said it was not addictive, then they can claim damages for misleading and deceptive conduct,” says Ben Slade, Managing Principal of Maurice Blackburn in Sydney and head of the firm’s NSW class actions department.
“They may also be able to claim for personal injury under Australian Consumer Law, depending on the extent of the addiction and the harm caused.”
The monumental US action has since been split into some 2,000 lawsuits filed in various federal and state courts against Purdue Pharma, some joining other drug makers as defendants. The first of these suits, brought against Purdue and the Sacklers by the US state of Oklahoma, was settled for US$270 million (AU$378 million) in April.
“If the evidence is that the impact of drugs is as severe as the Americans allege – people becoming chronically addicted and unable to keep working, losing their jobs and income – it could well be that a class action is in the wind for Australia,” says Slade.
The impending opioid crisis
Opioids and in particular OxyContin, which generated an estimated US$35 billion in sales between 1996 and 2017, have become synonymous with a plague of addiction that has ravaged American communities since prescription opioids became available in the 1990s. Prior to this crisis, heroin was the drug most commonly involved in overdose deaths. (Heroin itself is a type of opioid and induces a similar pain-relieving “high”.) But deaths from prescription opioids like oxycodone and morphine have increased sixfold since 1999, according to the US Centers for Disease Control and Prevention. Overdose death rates involving both licit and illicit opioids skyrocketed by 137 per cent between 2000 and 2016. And the US Council on Foreign Relations estimates that more than 900 Americans die from opioid-related overdoses every week.
Australia hasn’t escaped this crisis. Local academics like Samanta Lalic, a clinical pharmacist and PhD candidate at Monash University, are increasingly warning of the opioid-related harm sweeping our shores. Lalic is part of a team conducting the first ground-breaking research into the growth of prescription opioid use in Australia. The team’s first alarming findings were published in the British Journal of Clinical Pharmacology in 2018.
“We found that one in six Australian adults use opioids every year – which was a huge number when you think about it,” says Lalic. “We also found that one in 10 start taking opioids each year.
“To put it another way, 1.9 million Australian adults initiate opioid use, and 3 million use opioids each year.”
Lalic says dependant users are often first exposed to prescription painkillers for chronic conditions like back pain. They need stronger doses as the pain persists and they grow accustomed to the medication. If they hit obstacles sourcing legal prescriptions, they might turn to illegal opiods. Heroin is a common progression.
“People assume that the stereotype of a drug user or ‘addict’ is the depraved, criminal, homeless junkie or druggie,” says Lalic. “But what we have actually seen is that it can be anyone who initiates opioid use and becomes dependant. The reality is more mainstream, suburban, white-collar and regional.”
White-collar workers and middle-aged, suburban mums and dads are among the thousands of Americans who have transitioned from prescription opioids to heroin and lost their livelihoods in the process. These are the types of victims claiming compensation from Purdue Pharma and the Sackler family. Although many Australians may associate drug overdose death with young people living in cities, Australia’s annual overdose report 2018 by the Penington Institute found that almost 70 per cent of accidental overdose deaths occur in middle-aged Australians between 30-59.
A class action in Australia?
Despite the disturbing data trends, Lalic thinks an opioid-related class action like those being mounted against the Sackler family is less likely to be successful in Australia. She says the aggressive marketing campaigns that Purdue Pharma embarked on to distribute OxyContin in the US have not been replicated here. Australian plaintiffs might find it harder to pin fault on the manufacturer.
“In Australia we have different laws and regulations regarding advertising of drugs,” says Lalic. “We are a lot stricter. Opioids cannot be advertised on TV, whereas in America it’s a sort of free-for-all so any medications can be advertised.”
But Slade believes a legal argument could be mounted based on a lack of acceptable quality of goods, required by the Competition and Consumer Act.
“Australian Consumer Law has specific provisions for compensation for injury caused via products or goods that have been bought,” he explains. “If a product is provided that is not acceptable quality and it causes injury, then one has a claim to compensation for the injury it has caused. The threshold is that the injury must have an impact on you that is greater than 15 per cent of total bodily injury.”
Slade notes that Maurice Blackburn ran a successful class action relating to medical goods in 2016, against DePuy and Johnson & Johnson Medical for manufacturing defective hip implants. In that case, 2,000 applicants settled with the companies for AU$250 million.
“If a drug company fails to warn you about addiction risks of taking drugs, and you become addicted, and that addiction is so crippling that it’s regarded as imposing an injury on you of greater than 15 per cent of total bodily injury, you can claim,” says Slade.
“If you then lose your employment, you will have an economic loss associated with that. Serious crippling addictions will do that.”