The usual suspects among mass tort trial lawyers are in charge of opioids litigation seeking recoupment for local governments, union funds and other health payers [Daniel D. Fisher, Legal NewsLine/Forbes] Earlier here, here, here, here, here, and generally.
“Following in the footsteps of two California counties, the city of Chicago this week filed suit against five pharmaceutical companies, contending that they drove up the city’s costs by overstating the benefits of their addictive painkillers and failing to reveal the downside of taking the drugs.” [ABA Journal, Bloomberg] The city’s press release asserts, among other things: “there is no scientific evidence supporting the long-term use of these drugs [opioids] for non-cancer chronic pain.”
Suits like this are typically, though not invariably, concocted by private law firms which then pitch them to governments hoping for contingency-fee representation deals. (Orange and Santa Clara are the California counties that have signed on to such actions.) For more on the war on painkillers and their marketing, check the ample resources at Reason mag from Jacob Sullum, Brian Doherty, and others; note also a recent book, A Nation in Pain by Judy Foreman, via Tyler Cowen. Our earlier coverage is here.
“So we now have a politician directly dictating medical policy to doctors at city hospitals.” [Radley Balko]
P.S. In the mayor’s view, just as you can’t make an omelet without breaking eggs, so you can’t fight painkiller abuse without overriding doctors’ judgment: “so you didn’t get enough painkillers and you did have to suffer a little bit…. there’s nothing perfect.” [Colin Campbell, Politicker]
Pennsylvania: “A York man who pleaded guilty to illegally selling prescription drugs is suing the doctor who prescribed the painkillers to him for medical malpractice and medical negligence.” [York Daily Record]
And from the same state: veteran who broke into a pharmacy to steal drugs sues Veterans Administration for not having given him better mental health counseling. [Times-Leader]
For your own good, of course — and so that they can make more arrests. [Radley Balko]
…so prosecutors in Morris County, N.J. seized his family’s three cars. “Neither of the parents were aware of their teenage son’s prescription painkiller use, nor were any of the cars registered in his name. The family currently has no means to get to work or transportation. Gerald Trapp Sr. is a Bloomfield police officer.” The youngster, Gerald Trapp Jr., 19, accepted a diversion program for first-time offenders in lieu of trial but did not admit any wrongdoing. (Peggy Wright, “Prosecutor wants to keep 11 seized cars”, Oct 27; TheNewspaper.com, Oct. 28)(via Nobody’s Business, Oct. 28).
Can the lawful sale of products be retrospectively declared a “public nuisance” and tagged with enormous damages, based on theories that the products caused harm after being used by third parties not in court? Before such theories succeeded in an Oklahoma courtroom against Johnson & Johnson over its promotion of opioid painkillers, they had been unsuccessfully deployed against the makers of guns used in crime, while another set of recent lawsuits attempts to deploy them in hopes of making the sellers of fossil fuels pay for the harms of climate change. Scott Keller, Houston Chronicle/Texans for Lawsuit Reform:
Public nuisance claims traditionally have been limited to conduct interfering with truly public rights. For example, courts for decades have recognized public nuisance claims brought by governments to remove impediments from their public highways or waterways. Even then, courts generally did not recognize such claims where a legislature or administrative agency had already regulated an industry. After all, if the political branches of government regulated an industry, then they were telling courts what did and did not qualify as an unlawful “nuisance.”
But a series of recent lawsuits wants courts to ignore these limits on public nuisance claims and obliterate entire industries. These lawsuits seek to massively expand what counts as a public right, and they want courts to destroy companies that are already complying with existing regulations.
Similarly: “’A loss on the public nuisance theory in the Oklahoma opioid public nuisance theory would have been a potentially devastating state court precedent for the climate change public nuisance cases now pending in state courts,’ said Richard Lazarus, a professor of environmental law at Harvard.” [Dino Grandoni, Washington Post]
Which raises a question: when trial lawyers were pitching Oklahoma politicos on the large sums to be gained by pursuing strained public nuisance theories against opioid makers, do you think they mentioned that the theories if embraced might work to shut down the locally popular oil and gas business?
As the Wall Street Journal reports, former Mississippi attorney general and longtime Overlawyered favorite Michael Moore has been collaborating with Ohio Attorney General Michael DeWine, with other elected government attorneys, and with other trial lawyers to seek lift-off of suits against painkiller makers and distributors. The headline was “Lawyers Hope to Do to Opioid Makers What They Did to Big Tobacco,” which got several of us going on Twitter:
Parlay sweetheart attorney general contracts into multi-billion-$-fees? https://t.co/t9OQ2zupwm
— Walter Olson (@walterolson) July 24, 2017
Which in turn played off Jonathan Adler’s:
Create a highly profitable cartel that funds state projects & is protected by federal regulations? https://t.co/2Vxf9ujp2W
— Jonathan H. Adler (@jadler1969) July 24, 2017
And Gabriel Malor’s:
Get astoundingly rich with the help of Congress? https://t.co/VUxoX9bC6P
— Gabriel Malor (@gabrielmalor) July 24, 2017
Mine drew a number of responses, including this from Bloomberg View business columnist Joe Nocera:
Damn straight! That's the business model.
— Joe Nocera (@NoceraBV) July 24, 2017
Don't forget: …and actually secure the future of the manufacturers, with the consumers the only ones who lose anything.
— Carl V Phillips (@carlvphillips) July 24, 2017
Woo Hoo! I can't wait until I get to tell a cancer patient all I can give her is a Tylenol! ?
— Bona Felis (@scsloan01) July 25, 2017
In a more conventional op-ed vein, there’s this from Tiger Joyce.
- Study: doctors who use more resources are less likely to face malpractice claims [British Medical Journal]
- “Obesity is not in fact a public health problem. It may be a widespread health problem, but you can’t catch obesity from doorknobs or molecules in the air. [David Boaz, Cato]
- Contingency-fee law enforcement creates bad incentives, part MCXXXVI, health outlay recoupment division [W$J on Medicare auditors]
- Welcome to Canada, skilled one, unless your spouse is ill. What that says about the welfare state [Bryan Caplan]
- “Jury awards $16.7 million in swine flu death of pregnant Puyallup mother” [Tacoma News-Tribune]
- Doc convicted of murder after patient overdoses: “Some experts worried that a conviction would have a chilling effect on worried doctors and keep powerful painkillers from patients who need them.” [L.A. Times via Jacob Sullum]