There is no question that the opioid crisis affects Michigan residents. In 2018, of the 2,599 drug overdose deaths in Michigan, 2,036 were opioid related. On December 17, 2019, Michigan Attorney General Dana Nessel filed a complaint in Wayne County Circuit Court against Cardinal Health, McKesson Corporation, AmerisourceBergen Drug Corporation, and Walgreens under the Drug Dealer Liability Act, MCL 691.1613 et seq., for their alleged role in the opioid crisis in Michigan. The complaint alleges that the defendants
- distributed and sold opioids in ways that facilitated and encouraged their flow into the illegal secondary market;
- distributed and sold opioids without maintaining effective controls against the diversion of opioids;
- chose not to effectively monitor, investigate, report, or stop or suspend shipment of suspicious orders; and
- distributed and sold opioids prescribed by “pill mills” when these companies knew or should have known the opioids were being prescribed by these pill mills.
The Drug Dealer Liability Act, enacted in 1994, was passed to provide another tool to combat crack and street drug empires. Michigan’s statute is based on a model statute that has been adopted in about 20 states. Liability under the statute is grounded on damage caused by the distribution of illegal drugs into a community.
Michigan is the first state to use this act to attempt to place liability on drug companies for distributing this prescription pain medication and failing to oversee the sales of those pills. The damages alleged include
- increased law enforcement costs;
- health care costs;
- costs to care for, house, rehabilitate, and foster opioid addicts and opioid-dependent infants and children;
- costs associated with early childhood intervention;
- special needs education costs with respect to infants born with neonatal abstinence syndrome because of opioid abuse, who require special education when they attend local schools;
- prosecution-related costs, including hiring additional prosecutors, investigators, and staff as well as additional courtroom-related expenses;
- costs for additional jail space and other costs associated with incarceration;
- drug treatment program costs; and
- any other financial loss proximately caused by illegal drug use.
Other litigation based on similar statutes is pending in Georgia and Arkansas, but those suits were brought by relatives of opioid users rather than by the state attorney general. It remains to be seen whether other states will follow Michigan’s lead in this type of litigation.