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Opioid litigation should serve the public interest, not trial lawyers' bottom lines

Washington Examiner, July 15, 2017

By: Tigre Joyce 

The Centers for Disease Control and Prevention last Thursday reported that prescriptions written for opioid painkillers dropped more than 13 percent between 2012 and 2015. On the same day, the maker of one such federally regulated medicine agreed to the Food and Drug Administration's request to halt sales of its product. But even as Americans can be encouraged by responsible authorities' increasing engagement and determination to address our nation's complex problems with opioid abuse, we can all agree that those problems won't be solved overnight.

We also should be able to agree that elected policymakers, the expert regulators they appoint, the medical and scientific communities, and law enforcement should be working cooperatively to advance the interests of public health and safety. Which is why the American Tort Reform Association is raising concerns about the reported involvement of largely self-interested personal injury lawyers in developing litigation, ostensibly led by state attorneys general, that targets drugmakers.

Troublingly, New Hampshire's Supreme Court last month overturned a trial judge's decision that barred the state attorney general from hiring on a contingency-fee basis private-sector personal injury lawyers to sue drug companies on behalf of the state. The trial judge had effectively reasoned that the private-sector lawyers' interest in maximizing their share of a settlement or verdict conflicted with the pursuit of justice in the public interest and undermined the defendants' right to due process.

Of course, abuses of such arrangements between government prosecutors and outside counsel have been well-documented for more than a decade by the Wall Street Journal's editorial board and a Pulitzer Prize-winning New York Times series. Such reporting has shown how personal injury lawyers often shop their ideas for potentially lucrative lawsuits against corporate defendants to friendly state AGs whom they support with generous campaign contributions.

So, it's most important that lawsuits by powerful state or local governments truly serve the public interest, and not merely the profit-seeking interests of politically influential members of the plaintiffs' bar. Drawing a bright line between these obviously conflicting interests has been an ATRA policy priority for more than a decade, animating our drive to enact commonsense statutes – in 18 states thus far – that promote accountability and transparency when public authorities feel compelled to hire outside counsel to run major litigation.

In fact, ATRA was part of the successful 2015 effort to enact such a statute in Ohio, where Attorney General Mike DeWine hired outside counsel as "consultants" in his lawsuit against makers and distributors of opioid pain medications.

Among those consultants is former Mississippi Attorney General Mike Moore, whose private-sector associates in precedent-setting, multistate litigation against tobacco companies 20 years ago were widely reported to have netted more than $1.6 billion in fees without ever providing Magnolia State citizens a full accounting of the work they performed. Also interesting is the fact that much of the tobacco money that has gone to states has not been used as it was supposed to be.

While AG DeWine appears to be complying with Ohio's 2015 transparency law, ATRA will closely monitor compliance, and we urge media watchdogs to do the same. The role of these personal injury lawyer consultants will continue to be a focus for ATRA as recent accounts in the media suggest this litigation is likely to grow and target additional defendants.

Ultimately, policymakers must seek to maximize public health and safety. And with an obvious need for cooperative efforts to improve regulations and reduce opioid abuse, policymaking must not be left to trial lawyers with an interest in maximizing their fees.

Tiger Joyce is president of the American Tort Reform Association in Washington, D.C.