The opioid addiction issue is headed for the next stop on what is now a well-worn path: from public health crisis, to subject for award-winning and heart-tugging journalism, to payday for trial lawyers.
The lawyers are poised to do to prescription drug companies, pharmacy chains, and drug distributors what they did to tobacco companies and asbestos manufacturers—wring from them a multibillion dollar settlement, with a sizeable chunk going to the lawyers themselves.
They may even do so with an assist from President Trump. "Hopefully we can do some litigation against the opioid companies," Trump said earlier this month at a White House "Opioids Summit." "I think it's very important because a lot of states are doing it, but I keep saying, if the states are doing it, why isn't the federal government doing it? So that will happen."
Somehow the Democrats usually on high alert at the risk of President Trump "interfering" with the "independent" Justice Department apparently managed to make peace with the presidential involvement, so long as it involved Trump siding with the trial bar against the for-profit pharmaceutical industry.
The Justice Department was acting as Trump was talking. On March 1, federal government lawyers filed a "statement of interest of the United States of America" before Judge Dan Polster of the U.S. District Court for the Northern District of Ohio. Judge Polster is presiding over the consolidated cases known as In Re: National Prescription Opiate Litigation. It is so vast that just the docket listing the names of the parties and their lawyers is 222 pages long.
The potential damages involved are vast. The federal lawyers, who asked the judge for 30 days to "evaluate" whether to participate in the lawsuits, cited a report by the president's Council of Economic Advisors, who "estimated that in 2015, the economic cost of the opioid crisis was $504 billion."
It wasn't so long ago that Republican presidents stood for reining in civil litigation rather than piling on to it. But then again, it wasn't so long ago that Republican presidents stood for free international trade rather than tariffs, either.
As usual in these sorts of cases, "liability" is likely to be more about having the deep pockets available to fund settlements than with any thoughtful or thorough reckoning with moral or logical responsibility. Don't expect much effort to target the congressmen and senators who voted for the ObamaCare legislation that expanded insurance coverage for these drugs, or for the Food and Drug Administration bureaucrats who approved them, or, with few exceptions, the doctors who prescribed them. Certainly don't blame any of the users themselves. The targets of the suits instead are mostly large publicly traded companies—Abbott Laboratories, CVS Health, Costco, Express Scripts, Wal-Mart—whose shareholders will wind up paying the price of any settlement.
Also as usual, there is little consideration given to the potential unintended consequences. The same issue of The New York Times that carried the news of the government's statement of interest before Judge Polster also carried a book review lamenting the "sluggish progress" and "dry pipeline" in developing new medicine to treat mental illness.
It's already so expensive to discover a new prescription medicine and to go through the clinical trials required to prove safety and efficacy that most big drug companies have more or less given up on early-stage research and development, preferring instead to purchase smaller, venture-funded start-ups whose products show promise. Adding the possible costs of litigation and settlement for potential abuse even after a product has been approved by the FDA makes the hurdle for investing in a new drug even higher.
Trump is fond of invoking the "forgotten man." It's a category that might include people with diseases that go uncured because drug companies are spending on lawyers, settlements, or insurance premiums instead of research and development.
That's not to say that the drug companies are entirely blameless. If evidence proves that their employees or executives intentionally engaged in fraudulent behavior in connection with opioid abuse, those individuals should be held accountable. But the idea of making public company shareholders foot the bill for a public health crisis is so flaky and potentially counterproductive that it's the sort of thing only a trial lawyer, or a politician, could have dreamed up.
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