This commentary was featured in The Hill on April 5, 2018.
The opioid problem is at a crisis level, but targeting pharmaceutical companies because of their deep pockets may enrich a few, but will fail to benefit many. Recently, personal injury lawyers have been chasing Texas counties to file lawsuits on a contingent fee basis against pharmaceutical manufacturers for the cost of dealing with opioid abuse. The basic theory in these cases is that pharmaceutical manufacturers and distributors are to blame for the opioid crisis and that taxpayers have had to shoulder the costs of paying for people living with addiction.
The more basic theory is this: personal injury trial lawyers have pitched county judges and commissioners on a get-rich-quick scheme — hire us to sue and your county may receive millions from these wealthy companies without costing the counties a nickel. What is missing from these discussions is how any court judgment or settlement will benefit the thousands stuck in the abyss of addiction.
First, it’s just a bad legal theory. To recover damages, the counties would have to show that opioid manufacturers were negligent, and that their negligence was the primary cause of the problem. But all opioids on the market have to first be approved by the Federal Food and Drug Administration — an expensive, exhaustive, multiyear process — and then prescribed by a state-licensed physician.
It is difficult to argue that a manufacturer objectively “should have known” that opioids were too dangerous for consumption when all the relevant state and federal authorities have held that the product is safe. Indeed, Texas law provides a heavy presumption that manufacturers are not liable for harms arising from a product or medicine that complies with state and federal regulations.
Second, this sort of litigation sets a dangerous precedent. Since the era of the common law, courts have held that manufacturers are not liable for injuries arising from the clear misuse of their products. For example, baseball bats are used to commit numerous violent crimes every year, but the Louisville Slugger company is not held financially liable for injuries caused when its bats are used for assaults, because bats are not inherently dangerous, even though they may become so if used improperly.
Similarly, there is nothing inherently evil about opioids. When used as properly prescribed, opioids are effective medicine that help people recover from injuries and deal with extreme pain. Much of opioid addiction is a result of abuse and illegal choices by patients and doctors, not simply the drug itself. To hold opioid manufacturers liable for the improper use of their products, would open the floodgates for lawsuits seeking compensation against manufacturers of any product involved in an injury or crime.
Finally, this litigation is reminiscent of the big tobacco settlements from the 1990s, in which lawyers in the early lawsuits split billions of dollars in fees.
Yet, despite all of the funds paid by the tobacco industry, tobacco remains the leading cause of preventable death, disease, and disability in the United States, with nearly 40 million U.S. adults that still smoke cigarettes. As Texas counties rush to court to sue over opioid addiction, the poor track records of past analogous lawsuits should give policy makers pause that this is a pathway to a viable solution.
But nothing in this world is free. Frivolous litigation against drug manufacturers will drive up the cost of drugs and further burden an overcrowded court system that already takes way too long to divvy up justice. Multi-party litigation affords legislators and policy makers the excuse to not take any action while the court cases are pending. Finally, there is no guarantee that any funds paid, if ever, will go towards treatment or rehabilitation. Instead of through personal injury litigation, opioid abuse and addiction issues are best left to the legislative branch for areas that fall within the proper role of government.
At the end of the day, responding to drug abuse in our communities will require tough decisions by local politicians and more importantly, voluntary actions by individuals, families, civic groups, and churches. Those are the right tools for the job, not the courts.