By The Herald Editorial Board
A settlement that requires a family — among those most culpable for an opioid drug epidemic in the United States that during more than two decades has resulted in more than a half-million deaths and drained hundreds of billions of dollars from local and state governments — to pay up to $4.5 billion is still quite the bargain.
Yes, $4.5 billion is a significant sum, but consider the other side of the scale in this agreement following a federal judge’s approval Wednesday of a bankruptcy settlement for the Sackler family, the now former owners of Purdue Pharma, the makers of OxyContin, the prescription opioid generically known as oxycodone.
The bankruptcy settlement — which includes an estimated payment between $4.3 billion and $4.5 billion to be dribbled out over the next nine years and the dissolution of Purdue Pharma — allows the Sackler family to avoid admitting responsibility for its part in pushing doctors to prescribe OxyContin, excuses them from future lawsuits over harm caused by the company’s opioids, and allows them to keep some $11 billion of opioid profit, assuring their ranking as one of the wealthiest families in the world.
Even for Judge Robert Drain, the settlement was a bitter end, even spelling out the word during his ruling; Drain said he had hoped for and expected a larger sum. But the judge — echoing the sentiment of most of the state and local governments, tribes, hospitals and individual plaintiffs in lawsuits — said he believed this is the best that could be done and that dragging out the process would delay compensation for victims and funding for work that can mitigate the epidemic.
That’s a reasonable argument. But not the only one to be made.
Following the judge’s acceptance of the settlement, the attorneys general for Washington, D.C., Connecticut and Washington state announced plans to appeal the bankruptcy plan.
In a release, Washington state Attorney General Bob Ferguson asserted that the settlement was inadequate, and that a bankruptcy court doesn’t have the authority to prevent attorneys general from enforcing state law, including the decision to pursue the company’s owners, the Sackler family, for its illegal conduct.
“This order lets the Sacklers off the hook by granting them permanent immunity from lawsuits in exchange for a fraction of the profits they made from the opioid epidemic; and sends a message that billionaires operate by a different set of rules than everybody else,” Ferguson said in a statement. “This order is insulting to victims of the opioid epidemic who had no voice in these proceedings and must be appealed.”
The settlement’s award — $4.3 billion by Ferguson’s accounting — is inadequate next to the $11 billion in profits the Sacklers have made during the opioid crisis. The provisions of the settlement make it more so. Because that sum will be dispersed over nine years, Ferguson said, referring to a recent New York Times commentary, investment interest could make the Sackers wealthier at the end of the settlement term than when they started, potentially allowing them to pay the $4.3 billion settlement without touching the principal.
The $4.3 billion also pales against what the nation has lost, not only in lives, but economically.
Between 2015 and 2018, the opioid crisis cost the U.S. economy an estimated $631 billion; the costs have continued to mount, between $172 billion to $214 billion each year, according to a 2019 Society of Actuaries report.
OK, so what is Washington state potentially giving up if Ferguson appeals? Nothing, really. Even if unsuccessful in its appeal, the state still stands to benefit from the bankruptcy settlement. Even so, it won’t come close to what the opioid epidemic has cost the state and its communities. The state could see — again, in payments spread over nine years — about $70 million. Factor in inflation over that period, and the payout would equal $50 million to $63 million in today’s dollars, the attorney general said.
It won’t be a completely fair comparison, but consider the settlement that Washington and other states won in 1998 against tobacco companies. That agreement, with payments continuing through 2025, won the states in the settlement a total of $246 billion. Washington state’s share will, at the end, have totaled about $4.5 billion.
Purdue can’t be blamed for the entirety of the opioid crisis; many current overdose deaths are blamed on the illicit synthetic opioid, fentanyl. Still, Purdue bears much of the responsibility, because it and other prescription opioid manufacturers and distributors created demand by fostering new addictions among patients who sought treatment for pain.
Purdue is culpable for wrongdoing because it put continuation of its profits above a growing public health crisis. Purdue began selling OxyContin some 25 years ago, dismissing doctors’ and officials’ concerns about the opioids’ addictive properties and encouraging them to keep pushing pills to treat patients’ pain. Court documents show company officials continued marketing efforts to maintain sales even as it became clear the drug was being abused and was responsible for overdoses and deaths.
During the coronavirus pandemic, the opioid epidemic has only grown. More than 72,000 in the United States died of opioid overdoses in 2019, it’s highest level during the previous 20 years. Last year, provided cover by the covid-19 pandemic, more than 93,000 in the U.S. died of opioid overdoses. In Washington state, 1,649 died of opioid overdoses in 2020, the death rate increasing from 11.3 per 100,000 residents in 2019 to nearly 16 per 100,000 in 2020.
The attorney general should pursue an appeal and see who else among the original plaintiffs are willing to reject the settlement.
It’s not that up to $4.5 billion couldn’t do some good — although some individual plaintiffs will see only $3,500 for what they’ve lost — but that it comes at too high a price in a denial of justice and a full acknowledgment of responsibility.
Correction: An earlier version of this editorial incorrectly reported that an appeal of the bankruptcy settlement could result in the loss of its share of the settlement. Even if the Attorney General Office’s appeal is unsuccessful, the state would still receive about $70 million over nine years.