Profit-Driven Lawyers Deter Comprehensive Solutions for Opioid Crisis

On Jan. 14, New Mexico became the latest state to join a nationwide settlement with Johnson & Johnson and other opioid makers. The company agreed to pay the state $44 million to resolve claims that it fueled the opioid epidemic through its marketing practices.

Also, states joined together to urge California courts to dismiss complaints filed by local governments, arguing that the municipality complaints undermine the states’ roles in the opioid multi-district litigation (MDL).

The MDL, comprised of more than 1,000 cases, concerns another national crisis which has been backburnered during the Covid-19 pandemic—the country’s opioid epidemic.

Opioid abuse has resulted in enormous human and economic costs, as state attorneys general who have reached settlements aimed at combating the epidemic and alleviating its harms have stated.

However, the master complaints filed in this MDL by hundreds of political subdivisions of states that have already settled with the same defendant as well as major pharmacies threaten to frustrate—not further—efforts to resolve litigation over the opioid epidemic, lessening the likelihood of achieving meaningful resolution.

These follow-on complaints, along with duplicative municipal litigation against all these businesses, risk usurping the states’ traditional authority to act in the interests of their citizens. Allowing the municipality complaints to proceed will harm not just the settling parties but the prospects of resolution for future MDLs—and the administration of justice itself.

Unseen Parties: Contingency Fee Lawyers

The underlying current flowing through these hundreds of similar claims, though, is the often-unseen parties behind the litigation—virtually all of them are represented by lawyers paid on a contingency basis.

Under these arrangements, lawyers for these state, county, municipal, and tribal governments are not paid unless their clients “win.” But winning does not necessarily solve the crisis at hand.

Lessons from Tobacco Litigation

Governments and their lawyers frequently point to the “success” of the tobacco litigation from a generation ago as a basis to justify today’s litigation against drug manufacturers and distributors.

But, closer examination of the experience in Texas proves that corruption is often less than an arm’s length away when enormous sums of money are on the line. Further, litigation cannot ensure that settlement funds are addressed entirely toward the underlying problem.

In fact, former Texas Attorney General Dan Morales (D) spent time in federal prison from 2003 to 2006 after admitting to forging documents to allow a personal friend to receive a share of the enormous legal fees generated in that state’s tobacco case, even though he had done no work in the matter.

While Texas receives $490 million each year under the tobacco settlement, only $10.2 million was allocated toward anti-smoking efforts in 2016. Matthew Myers, of the Campaign for Tobacco Free Kids, stated that when “measured against the potential successes and the potential good that could have been achieved, Texas and many other states fell far short of their objectives.”

This is hardly surprising considering barely 2% of the annual settlement payment to the state supports smoking cessation. There is one group, however, that did exceedingly well: the personal injury lawyers. The “big five” Texas tobacco settlement lawyers receive about $120 million each year for their work in the 1990s.

Today, former Mississippi Attorney General Mike Moore (D) serves as a “consultant” for a coalition of states and localities in their opioid litigation. But, during Moore’s tobacco litigation, he managed to pay his private-sector associates more than $1.6 billion in fees without ever providing citizens a full accounting of the work they performed.

With many of the same characters involved in the opioid litigation, it is hard not to expect that it is the lawyers that will truly benefit. The reality is that this complicated problem requires a comprehensive solution.

History shows that litigation against manufacturers and distributors will do nothing to stop the scourge of illegal opioids, particularly synthetic fentanyl, shipped into the country from China. We cannot ignore the fact that litigation seeks to lay all these problems at the feet of manufacturers, distributors, and pharmacies who are subject to extensive U.S. and state government regulation.

Our civil justice system exists to resolve disputes—not to perform the duties of lawmakers, regulators, and law enforcement. Broader public policy challenges should be addressed by those entrusted with such responsibilities. In the case of opioids, that includes Congress, state legislators, and federal and state public health officials and regulators. They are obliged to serve and protect the public, and they are accountable to us all.

By contrast, lawyers operating on a contingency fee basis are driven by a profit motive. As the sad tale in Texas demonstrates, lawyers’ relationships to elected officials can be problematic, to say the least.

To ensure a fair and comprehensive resolution for all those involved in and affected by the country’s opioid crisis, lawyers who are driven by potential winnings and settlements should not be the primary drivers of solving this epidemic. That responsibility lies with the officials we’ve elected to represent and serve us.