Lawsuits Won’t Fix Our Nation’s Opioid Crisis

The flood of more than 2,000 opioid lawsuits by 1,200 local governments in courts across the country is the latest example of a harmful trend that creates legal chaos and confusion, weakens the authority of state attorneys general and lines the pockets of trial lawyers — but does little to help the victims.

The first bellwether trial in the opioid multi-district litigation was scheduled to begin today, October 21 in Ohio. However, prior to the start of trial, it was announced that the parties reached a $250 million settlement. Following this settlement, a clear path toward resolution is no more apparent than it was when the torrent of thousands of lawsuits began more than three years ago.

There’s no question that the opioid crisis is a major public health issue, but it should be addressed by elected policymakers, expert regulators, the medical and scientific communities, and law enforcement agencies. Unfortunately, governments across the country have turned to the courts and litigation driven by private outside attorneys on the theory that lawsuits are the answer.

Plaintiffs’ lawyers have actively courted governments as “clients” because they understand that bringing lawsuits in the name of a government provides them with power and leverage not present in ordinary “private” civil litigation. It also entitles them to what are expected to be outsized legal fees in the event of a win or a settlement. Typically, these arrangements pay plaintiffs’ lawyers roughly one-third of the take plus their expenses. As a result, the incentive for these lawyers is to maximize their fees regardless of what is truly in the public interest.

The Ohio opioid multi-district ligation involves more than 2,000 lawsuits filed by more than 1,200 localities. The first of several bellwether trials involved two Ohio counties — Summit and Cuyahoga Counties — which originally sought $8 billion from manufacturers, distributors and others.

These cases present an additional problem: the counties are in conflict with their own state government. Ohio Attorney General Dave Yost recently filed a petition asking the U.S. 6th Circuit Court of Appeals to step in and dismiss the opioid cases filed by Summit and Cuyahoga. In his petition, which was supported by 13 other state attorneys general, Yost contends that allowing the county cases to move forward will create further confusion with inconsistent verdicts and misallocated funds. He states further that these cases intrude on state authority and should not be allowed to proceed. The 6th Circuit, however, rejected Attorney General Yost’s petition on October 10.

The simple reality is that significant problems arise when states, cities, towns, counties and other local entities across the country each bring lawsuits seeking money or action on the same issue. The authority to fully resolve the litigation is complicated by the number of entities involved. Competing interests make judicial resolution much more difficult, if not impossible, to achieve. They protract litigation and further delay the implementation of programs to actually help those in need.

Experience has demonstrated that lawsuits motivated and brought by contingency-fee lawyers on behalf of governmental entities will not solve complex public policy issues and proceeds are diverted for other purposes. Governments and their lawyers point to the “success” of the tobacco litigation from a generation ago as a basis to justify the ongoing opioid litigation. A closer examination of that experience, however, shows that the tobacco settlement did little for smoking cessation efforts. In Texas, which receives $490 million each year under the tobacco settlement, only $10.2 million was allocated toward anti-smoking efforts in 2016. Locality-based contingency fee lawsuits will do little to help the victims while lining the pockets of trial lawyers.

States must act to ensure that any litigation it initiates serves the public interest, and they should take action to combat the problems that arise with localities litigation. A good model for reform would be Texas, which recently enacted legislation that requires all contingent fee legal contracts for localities to be reviewed and approved by the Texas Office of the Attorney General. States across the country should pursue similar legislation to ensure transparency and prevent windfall fees for lawyers.

Major public crises like the opioid crisis demand a major response by government leaders, but the continued wave of contingency-fee litigation brought by state and local governments is the wrong one. It won’t do much to help victims or solve this crisis, and instead creates lasting problems for the legal system and business across the nation.