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Don't let opportunistic trial lawyers get rich off opioid crisis

The Hill, October 28, 2017

By: Tiger Joyce

President Trump has now declared the nation’s opioid crisis a “public health emergency.” This important step follows the recommendation by a White House commission, led by New Jersey Governor Chris Christie, to “act boldly,” to stem the crisis. 

As this epidemic of drug abuse becomes a growing problem for many states across the country, details of a White House strategy remain unclear. But as a recent Wall Street Journal editorial noted, the “horrors of opioid addiction come from many dysfunctions, including too many prescriptions, a decline in work, heroin and fentanyl, easy access from Medicaid, and others.”

Understandably then, as reported by a joint task force of the National Association of Counties and the National League of Cities, many communities are already cooperatively bringing together health care professionals, drug makers and distributors, regulators, law enforcement officials and social service providers “to break the cycles of addiction, overdose, and death” as they work through “partnerships across ... local, state and federal levels.”

But having let themselves be convinced that communities can somehow sue their way out of complex opioid abuse problems, some state and local prosecutors have taken a more adversarial approach. Not coincidentally, those doing the convincing are many of the same private-sector personal injury lawyers who got rich beyond their wildest dreams with contingency fees two decades ago when they convinced state attorneys general to let them run lawsuits against cigarette makers.

So no one should be surprised that the personal injury lawyers’ national trade group here in Washington hosted in September a “Rapid Response: Opioid Litigation Seminar” to teach attendees how they too might cash in on such litigation. One of the breakout sessions was even titled, “Opioids: The Next Tobacco?”

Never mind that prescription opioid pain-relievers are not like cigarettes. They were developed to address a legitimate medical need. They require Food and Drug Administration approval and stark warning labels about the potential for addiction, and their lawful distribution is closely regulated by the Drug Enforcement Administration. Of course, as we’ve all learned in recent years, what may begin with doctors’ thoughtful prescriptions of lawful medicines for patients’ terrible pain can in some cases end in the streets with overdoses on illegal and deadly drugs such as heroin and fentanyl.    

Not to be deterred by facts or nuance, much less the public interest, though, self-interested personal injury lawyers have talked a coalition of 41 state attorneys general into issuing subpoenas for five drug manufacturers that seek information about how prescription opioids were marketed and sold. Several state AGs have already gone further, filing multi-count lawsuits against drug makers and distributors, with dozens of county and city prosecutors following suit. And most of these prosecutors have hired private-sector lawyers to consult or run their lawsuits.

The prosecutors assert that hiring outside counsel on a contingency-fee basis saves taxpayers money since counsel only gets paid if litigation is successful. This simple rationale, however, overlooks the conflicts of interest and corruption to which such arrangements have often led. A litany of these types of abuses has been chronicled for more than a decade by the Wall Street Journal’s editorial board and a Pulitzer Prize-winning New York Times series.

This reporting has revealed that politically influential plaintiffs’ lawyers frequently shop their ideas for potentially lucrative lawsuits against corporate defendants to friendly state prosecutors who then hire the lawyers, expecting generous pay-to-play campaign contributions later.

Thus the American Tort Reform Association (ATRA) urges all policymakers to insist that the public interest in health and safety is never compromised by private interests. This principle has animated ATRA’s efforts for more than a decade to push commonsense reform statutes — successfully in 18 states so far — that promote accountability and transparency when public authorities choose to hire outside counsel on a contingency-fee basis.

Too many Americans are suffering serious drug abuse problems, and our leaders must work together to find good-faith solutions. They ought to be relying for guidance on caring and knowledgeable experts inside and outside of government. Because to rely on trial lawyers instead is to invite other problems that neither policymakers nor their constituents need.