The prospect of settlement in the local government opioid cases is likely to result in a massive windfall into the many billions of dollars for private lawyers who signed up government clients; many of these lawyers are munificent political donors as well [Daniel Fisher, Legal Newsline] Earlier, an Ohio federal judge’s scheme for opioid “negotiating class” idea raised eyebrows [Alison Frankel/Reuters, Daniel Fisher/Legal Newsline; Jan Hoffman, New York Times] And at Harvard Petrie-Flom’s “Bill of Health,” Jennifer Oliva interviews Prof. Elizabeth Chamblee Burch on the opioids battle; Burch has been critical of self-dealing and angling for fees by lawyers in mass tort and multi-district litigation.
SC Johnson, maker of Drano, Pledge and other household products, is threatening to sue Oklahoma Attorney General Mike Hunter for citing the company’s slogan in the state’s opioid lawsuit against an unrelated, yet similarly named, Johnson & Johnson.
“I am writing to demand that you retract your statements that have appeared in both national and local media citing the SC Johnson tagline, ‘A Family Company.’ If you do not, we will have no choice but to bring suit,” Johnson CEO Fisk Johnson said in a letter to Hunter released Tuesday.
S.C. Johnson says that even after it wrote the Oklahoma AG to warn him he was quoting the wrong company’s slogan, he went on national television and repeated the talking point.
Not to say anyone should be suing over this, but if AG Hunter didn’t know the difference between New Jersey-based pharma giant Johnson & Johnson, which he was suing for $ billions, and Racine, Wis.-based S.C. Johnson, the family-owned Johnson’s Wax company, it kind of makes my point about the demagogic populism fueling these cases. [earlier] And maybe also my point about how the private trial lawyers on contingency fee, whose expectation for a multi-billion-dollar payday will have to be met if the mass litigation is to settle, are the real brains of the opioid-suit operation.
“A judge in Oklahoma on Monday ruled that Johnson & Johnson had intentionally played down the dangers and oversold the benefits of opioids, and ordered it to pay the state $572 million.” The state had asked for $17 billion. [Jan Hoffman, New York Times and sidebar on why J&J, the deepest pocket, was the only defendant left standing in the Oklahoma case; opinion; Paul Demko, Politico; Lenny Bernstein, Washington Post] Caleb Brown interviewed me for the Cato Daily Podcast:
For other skeptical views of the case, see Daniel Fisher, Legal NewsLine (“J&J had about 3% market share, sold abuse-resistant drugs, and Oklahoma didn’t present evidence of a single doctor who was misled by its marketing.”) and followup (problems with state’s legal theory), Jeffrey Singer/Cato, and Jacob Sullum, Reason (sweeping definition of public nuisance) and followup (other problems). [More: Jonathan Turley]
Particularly worth noting is Jacob Sullum’s account of the logical path traced by Judge James Hill in North Dakota in recently dismissing a suit against Purdue Pharma:
One of the claims against the company involved a public nuisance statute very similar to Oklahoma’s. Hill noted that “North Dakota courts have not extended the nuisance statute to cases involving the sale of goods.” He cited a 1993 case in which the Tioga Public School District #15 of Williams County, North Dakota, argued that the sale of acoustical plaster containing asbestos qualified as a public nuisance.
The U.S. Court of Appeals for the 8th Circuit, which handled the case because it involved an out-of-state defendant, observed that “North Dakota cases applying the state’s nuisance statute all appear to arise in the classic context of a landowner or other person in control of property conducting an activity on his land in such a manner as to interfere with the property rights of a neighbor.” The 8th Circuit worried about the consequences of venturing beyond that “classic context”:
To interpret the nuisance statute in the manner espoused by Tioga would in effect totally rewrite North Dakota tort law. Under Tioga’s theory, any injury suffered in North Dakota would give rise to a cause of action under section 43-02-01 regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery. Nuisance thus would become a monster that would devour in one gulp the entire law of tort, a development we cannot imagine the North Dakota legislature intended when it enacted the nuisance statute.
Hill said he “agrees with the reasoning of the Eighth Circuit in Tioga.” As in that case, he said, the state in its lawsuit against Purdue was “clearly seeking to extend the application of the nuisance statute to a situation where one party has sold to another a product that later is alleged to constitute a nuisance.” Hill added:
The reality is that Purdue has no control over its product after it is sold to distributors, then to pharmacies, and then prescribed to consumers, i.e. after it enters the market. Purdue cannot control how doctors prescribe its products and it certainly cannot control how individual patients use and respond to its products, regardless of any warning or instruction Purdue may give.
Judging from the cases cited by Judge Balkman, Oklahoma courts have not read that state’s nuisance law to cover situations like this either—until now.
- “TriMet faulted Laing for failing to heed warning signs … and earbuds playing loud music. Laing’s attorneys argued it couldn’t be determined what volume the music was playing at at the time of impact.” [Aimee Green, Oregonian; $15 million jury verdict for woman who dashed in front of train reduced to $682,800]
- “When Are Athletes Liable for Injuries They Cause?” [Eugene Volokh on Nixon v. Clay, Utah Supreme Court]
- Former Alabama Sen. Luther Strange has written a law review article on local government abuse of public nuisance law in industrywide litigation [Stephen McConnell, Drug and Device Law] “California’s disturbing lead paint ruling is going interstate. Magistrate cites it in opioid MDL to support tribal nuisance claims under Montana law” [Daniel D. Fisher on Blackfeet Tribe v. Amerisource] Federal judge should have said no to Rhode Island climate change/public nuisance suit [Michael Krauss, Forbes]
- “Will New York law change veterinary malpractice?” [Christopher J. Allen, Veterinary News]
- Supreme Court’s 5-4 ruling on class action counterclaim removal in Home Depot U.S.A. v. Jackson leaves Congress to fix what Judge Paul Niemeyer called a loophole in the Class Action Fairness Act [Diane Flannery, Trent Taylor & Drew Gann, McGuireWoods, Federalist Society teleforum with Ted Frank]
- In Missouri, logjam for liability reform breaks at last as Gov. Mike Parson signs four pieces of legislation into law [Daily Star Journal (Warrensburg, Mo.); Beck on forum-shopping measure]
- Starting in mid-1990s German doctors began writing many more opioid prescriptions. But addiction and overdose rates did not skyrocket. What made Germany different? [Jeffrey Singer, Cato; Jacob Sullum, Reason]
- Will the Supreme Court’s unanimous ruling in Merck v. Albrecht manage to clarify preemption law? [Beck, Drug & Device Law and more; Jonah Knobler, Washington Legal Foundation]
- Money didn’t go into state treasury: “Oklahoma Lawmakers not so Happy About Purdue Pharma Settlement” [Sean Murphy, Insurance Journal, more] “Nevada AG’s old law firm can make up to $350 million on his opioid lawsuit” [Daniel Fisher, Legal Newsline] “List of firms handling Louisiana’s opioid lawsuit balloons to 17, including politically connected ones” [Sam Karlin, The Advocate] Richard Epstein on opiate litigation [Ricochet]
- National Vaccine Injury Compensation Program: “Where Calls for Overturning Bruesewitz v. Wyeth Go Wrong” [Dorit Reiss, Petrie-Flom “Bill of Health”]
- “Drug lawsuit ads are scaring seniors to death” [P. Roosevelt Gilliam III and Susan Peschin, STAT]
- Senate Republicans file bill to fast-track FDA consideration of over-the-counter birth control pill [Elizabeth Nolan Brown]
Salaried attorney for Texas county helps himself to contingency-fee deal representing same county in opioids litigation. Following press accounts raising the question of whether the arrangement was consistent with the Texas Local Government Code, the county amended the contract to remove its attorney’s role in the representation [David Yates, Southeast Texas Record and followup update; Brooks County, Tex.]
- Why is insulin so expensive? [Tyler Cowen] “People Are Clamoring to Buy Old Insulin Pumps” [Sarah Zhang, The Atlantic via Ted Frank (calling it “an amazing story …about a problem created by overregulation and fear of tort liability, words that never appear in the article”)]
- Opioid litigation might be working to let the policy offenders in government get away [Jeffrey Miron and Laura Nicolae, Real Clear Policy/Cato; Jeffrey Singer, Cato; Charles Fain Lehman, National Review] A contrasting view: Nicolas P. Terry, Petrie-Flom “Bill of Health”;
- Read and marvel: Critical Dietetics, a social justice health movement [James Lindsay on Twitter]
- How HIPAA, the health privacy law, impedes potentially life-saving research into health records [John Cochrane]
- Uh-oh: Pennsylvania Supreme Court move could reopen forum shopping for medical malpractice lawsuits [David Wenner, Penn Live]
- “Transparent Medical Pricing and the $89,000 Snake Bite” [Cato Podcast with Eric Ferguson]
- Estonia introduces artificial intelligence algorithms to adjudicate small claims disputes [Eric Niiler, Wired]
- “The Connecticut Ruling: Another Attempt to Blame the Gun for Gun Crime” [Joyce Lee Malcolm, Law and Liberty on 4-3 Connecticut Supreme Court ruling finding state consumer law not preempted by federal PLCAA (Protection of Lawful Commerce in Arms Act)] “But will the Supreme Court allow Connecticut to circumvent federal law?” [Scott Greenfield] Remington will seek certiorari review at U.S. Supreme Court [Dave Collins, AP/WTIC]
- In Pennsylvania, there’s “a feeling that law firms can get judges fired” after a worker’s comp judge who angered “one of the state’s most politically connected law firms…quickly lost her job” [William Bender, Philadelphia Daily News]
- Nanny staters vs. comptroller’s moves to modernize alcohol marketing regulation, no action on Sixth District gerrymander, Angelos asbestos bill tripped up, critics are right to oppose push to abolish child-abuse statute of limitation, heads should roll in business lobby after minimum wage fiasco, and more in a Sine Die (end of legislative term) roundup at my Maryland blog Free State Notes;
- “Harm Reduction: Shifting from a War on Drugs to a War on Drug-Related Deaths,” videos of Cato Institute conference with Jeffrey Singer, Maia Szalavitz, Ed Rendell, Clark Neily, Jeffrey Miron, Michael Cannon, and others [parts one, two, three, four, Jeffrey Singer overview blog post] and related Cato podcasts with Daniel Ciccarone on prohibition as crisis driver, Scott MacDonald on heroin-assisted treatment, Darwin Fisher on supervised injection, and Adrianne Wilson-Poe on cannabis and opioid overdose;
- “How Are State Supreme Court Justices Selected?” [Federalist Society Policy Brief video with Chris Bonneau and Brian Fitzpatrick]
- Sued if you do, sued if you don’t: drugmaker faces lawsuits over failure to provide Fosamax warning that FDA told it not to provide [Jim Copland, James Beck on Merck Sharp & Dohme v. Albrecht, pending at Supreme Court]
- On new APA masculinity guidelines, Sally Satel cuts to the point: will they improve the success of therapy for people seeking help? [Washington Post]
- What does it mean to say the opioid litigation might follow the tobacco model? [Rob McKenna, U.S. Chamber] Citing fate of earlier gun lawsuit filed by city of Bridgeport, state judge dismisses four lawsuits filed by Connecticut cities against opioid industry [Daniel Fisher, Legal NewsLine]
- I do miss the days when leaders of the public health profession focused on communicable diseases like typhus rather than running after Bloomberg grants to promote soda bans [Joel Grover and Amy Corral, NBC Los Angeles]
- Cooking the books on infant mortality: about those Cuban life expectancy stats [David R. Henderson]
- As artificial intelligence begins to make inroads into medical diagnosis, liability issues loom large [Beck, see related linked earlier]