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Opioid litigation shouldn't profit lawyers over patients

The Hill, September 10, 2017

By: Tiger Joyce 

President Donald Trump declared the opioid epidemic a national emergency, following a recommendation from a White House commission led by New Jersey Governor Chris Christie that urged the president to do just that.

Last month, the commission wrote in a report that more than 100 Americans die of drug overdoses every day, meaning America is “enduring a death toll equal to September 11th every three weeks.” To address this problem successfully, elected policymakers, the expert regulators they appoint, the medical and scientific communities, and law enforcement must work cooperatively to advance the interests of public health and safety. That must be their sole focus.

Unfortunately, a number of states, counties and municipalities have filed lawsuits in recent weeks demanding that manufacturers, wholesale drug distributors and pharmacies pay for the clean-up of the problem.

Never mind that these products were approved for sale by the Food and Drug Administration (FDA) and their production quotas were annually increased and approved by the Drug Enforcement Administration (DEA), and these very same states have always had regulatory authority over the physicians and pharmacies that prescribed and dispensed the products. It’s always easier to pass the buck.

Perhaps equally predictably most of these same governments have decided to pursue litigation at the urging of plaintiff lawyers who stand to gain hundreds of millions of dollars if they are successful. Typically, these arrangements pay plaintiff lawyers roughly one-third of the take plus their expenses. As a result, the incentive for plaintiff lawyers is to maximize their fees irrespective of the public interest.

Strong evidence of this problem can be found in investigations 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 governmental officials, most prominently state attorneys general, whom they also support with generous campaign contributions. 

Lawsuits brought by powerful state or local governments must 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 a policy priority for the American Tort Reform Association (ATRA) 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 initiate major litigation.

In fact, ATRA was part of the successful 2015 effort to enact such a statute in Ohio, where Attorney General Mike DeWine has hired outside counselas “consultants” in his lawsuit against makers 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 citizens a full accounting of the work they performed.

ATRA has also worked to develop common sense reforms, like limits on contingency fees and greater transparency in government contracting for private lawyers.

ATRA urges lawmakers across the country to work together to pass common sense reforms that would rein in the potential for abuse and corruption that comes when governments hand over the power of the state to private lawyers looking only for personal enrichment.

Attorneys general and other government officials who bring these cases put their reputations and the integrity of their offices at risk when they rely on the private contingency fee lawyers to represent the public interest. Moreover, it is essential that, as with broader policymaking, any litigation must serve the public interest, not the profit motives of outside counsel.

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