America has an ongoing and devastating opioid epidemic. In 2016, the Department of Health and Human Services shared that opioids accounted for more than 42,000 deaths. Just one year later, more than 47,000 Americans died from an opioid overdose. While the opioid crisis is certainly not a new phenomenon, the recent barrage of litigations sparked conversation around who should be blamed for this massive epidemic and how the blamed parties might be held responsible for the consequences of their actions.

America’s opioid problem is a human-made public health crisis. As with most public health issues, more than one solution is needed to combat opioid addiction and alleviate the destructive impact opioids can have on individuals and communities. Proposed solutions to combat the crisis vary from guidelines for stricter prescribing habits for physicians to ending the war on drugs and the criminalization of addiction.

There may also be a need for ongoing treatment programs, needle exchange programs to combat the challenges of addiction, research and development into the root causes of addiction, and how to create less-addictive or, ideally, non-addictive alternatives. To see change, states might consider exploring and adopting several of these suggestions through legislative action while making significant changes to existing rules and regulations.

Although many have differing views on the best actions to combat the opioid crisis, perhaps the largest barrier to progressive change is obtaining ongoing and consistent funding. Despite cost estimates of the opioid crisis being difficult to predict accurately, a comprehensive plan will require a sizeable immediate expenditure and a continuing stream of support over at least a decade. For example, a comprehensive plan by Senator Elizabeth Warren, based on spending data from the HIV/AIDS crisis, proposes $100 billion in federal funding over ten years to fund first responders, public health departments, and local communities.

While other plans and estimates vary, one thing is clear: change needs to happen, and it needs to happen now. Yet, large-scale legislation can be slow to enact, and federal funding can take years to secure. Therefore, the current opioid litigation is the best option for an immediate source of funding to begin fighting this crisis. This paper begins with a brief overview of the history of the opioid epidemic. It will include a discussion on how the opioid problem grew into the crisis we know and fear today. The paper then moves into a synopsis of the current opioid litigation landscape and bellwether trials in Ohio.

Of course, this is not the first time that large scale litigation has raised such concerns about settlement expenditures. In many ways, the legal and public health issues raised in the current opioid litigation mirrors the concerns raised in the tobacco litigation of the 1990s. What ultimately became the largest settlement agreement in United States’ history, the tobacco litigation led to a payout of approximately $161.7 billion to settling states since 1998.

This paper aims to detail lessons learned from the tobacco master plan settlement and identify critical differences between opioids and tobacco that should shape the outcome of a potential opioid settlement. Finally, this paper concludes with a proposal for structuring a settlement plan that includes, at minimum, state-mandated spending requirements for states to develop a public-health centered plan to combat the opioid crisis in their communities.