ResponsibilityResponsibility

Based on the causal factors identified in Chapter 4, a total of 15 groupings of potentially responsible parties (“PRPs”) can be identified. The number of PRPs could be somewhat higher or lower depending on how entities are identified within each contributing factor. This number is considerably larger than the tripartite identified in the 1970 CSA and the recent Ohio abatement order in the MDL, which consisted only of manufacturers, distributors, and pharmacies. There is substantial evidence supporting the identification of these groups of entities as having some role in the opioid crisis, with some of them having an arguably causative or enabling role. While it may be conceptually convenient to fall back on the three traditional members of the pharmaceutical supply chain in considering issues related to liability, the U.S. opioid crisis provides a useful example of why the three supply chain entities constitute a narrow portrayal of the modern-day pharmaceutical supply chain. As many experts have argued, it is difficult to conceive of the growth in prescription opioid supply beginning in the early 2000s as being possible without the “perfect storm” of actions and inactions on the part of several of the contributing factors and associated PRP groups. In product liability cases with multiple causal factors and multiple defendants, it is usually necessary to develop a fair and equitable allocation model to apportion responsibility for harms (e.g., attributable costs and abatement costs) among PRP groups. In cases where volumetric approaches are not practical, allocation approaches have been somewhat more arbitrary, based on fair and reasonable approximations. The latter approach was taken in the opioid MDL, where the presence of three defendant PRP groups encouraged an apportionment of one-third of abatement responsibility to one of the categories (retail pharmacies) and the remaining two thirds to be distributed among the other two PRP groups. The approach to allocation was somewhat arbitrary, which suggests that other allocation methods would also work, assuming reasonable arguments can be made to support such allocation approaches.