Maytal Gilboa (Western University, Canada), Yotam Kaplan (Hebrew University of Jerusalem) & Ohad Somech (Netanya Academic College) have posted The Opioid Crisis as Unjust Enrichment on SSRN. Here is the abstract:
Despite the regulatory frameworks established by agencies like the Food and Drug Administration, Drug Enforcement Administration, and Centers for Disease Control and Prevention, the legal system has failed to prevent or effectively respond to the crisis. In fact, instead of providing adequate solutions, these agencies enabled the crisis by approving opioid drugs for widespread use. Opioid litigation has emerged as an alternative legal response and has indeed secured settlements amounting to tens of billions of dollars. Yet these awards pale in comparison to the full cost of the crisis, measured in hundreds of billions of dollars annually. The core of the problem is that much of the harm caused by the crisis is not compensable under existing doctrine. At the same time, opioid marketing remains incredibly profitable for pharmaceutical companies; this perverse dynamic assures the perpetuation of the crisis. This Article offers a reorientation of opioid litigation, shifting the focus from harms to gains. In doing so, the Article is the first to propose the doctrine of unjust enrichment as a foundation for the burgeoning field of opioid litigation. In particular, we suggest that profits made by pharmaceutical companies through deceptive practices constitute unjust enrichment. By misrepresenting the risks of opioid use and engaging in fraudulent marketing strategies, these companies have obtained ill-gotten gains that should be forfeited. More important, we argue that this reconceptualization of opioid litigation can revolutionize the response to the crisis and finally offer an effective legal path forward. Even if much of the harm caused by opioids is not compensable through litigation, effective deterrence can still be achieved if defendants are stripped of their ill-gotten gains, those obtained through the dishonest marketing of opioids. In fact, this form of remedy is a necessary element in any solution to the crisis.
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