I hesitate to rely on “rat” analogies because, as PopTort fans know, we’re based in New York City and no one here likes to be reminded of that little problem. But when I think of the creators of the opioid epidemic and their “tort reform” apologists – including OxyContin makers Purdue Pharma and its generic cousin Rhodes, the Sackler family which controls Purdue, and groups like the American Tort Reform Association (ATRA) and the U.S. Chamber of Commerce – “cornered rat” is one image that seems appropriate.
First to refresh, evidence gathered from state opioid litigation and recently in the New York Times can be summarized as follows:
- As the country’s addiction crisis worsened, the billionaire Sackler family decided to “increase their profits by selling treatments for the very problem their company had helped to create: addiction to opioids.” It was “named Project Tango.”
- By then, the company had already pled “guilty to a federal felony and paying more than $600 million in criminal and civil penalties.”
- The pharmaceutical industry developed “a multipronged approach” to “reshape public perceptions about pain and chip away at physicians’ reluctance to prescribe opioids, long known to be addictive, by describing an 'epidemic' of untreated pain affecting 100 million Americans.”
- Manufacturers funded “front groups” that were “disguised as ‘unbiased’ sources of cutting-edge medical research and information” and trained “sales representatives focused on doctors who were high-volume opioid prescribers, as well as inexperienced providers and primary care physicians who knew little about pain management, encouraging them to prescribe higher and higher doses for longer stretches of time.” These “sales representatives could earn tens of thousands of dollars in bonuses and were rewarded with trips to tropical islands.”
- As reports of overdoses grew, Richard Sackler urged the company to blame the patients. “We have to hammer on abusers in every way possible,” he wrote in a 2001 email disclosed in documents filed in the Massachusetts case. “They are the culprits and the problem. They are reckless criminals.”
Like all cornered rats, Purdue and the Sackler’s are trying to fight their way out of this, and “tort reform” groups are right by their side, lashing out at the principal way the industry is now being held to account – litigation. Importantly, this is public enforcement litigation brought by state and local public officials, who in addition to trying to uncover the truth (all the above information comes from evidence in state AG lawsuits), are trying to re-coup the extraordinary costs of responding to a crisis that was deliberately dumped in their lap.
In December 2018, 60 Minutes on Mississippi’s former Attorney General Mike Moore, one of the attorneys who “engineered the historic 1998 settlement under which Big Tobacco paid billions to address smoking-related health issues.” He happens now to be one of the attorneys suing opioid manufacturers and distributors, “coordinating with 30-plus states that have filed suit, and with many of the local governments, nearly 1,500 cities and counties that also are suing.”
Back in 2017, a PR firm that works with ATRA to Purdue (information in the Oklahoma AG’s lawsuit against the company):
CAMPAIGN GOALS AND OBJECTIVES
Our goal is to make state attorneys general think twice about joining the litigation and establish a credible watch-dog organization to monitor the use of contingency fee counsel should other state attorneys general join the suit. While specific strategies and tactics would be tailored to each Individual state attorney general, our initial program recommendations include the following objectives:
Leverage existing legal reform platforms-especially groups focused on outside use of contingency fee counsel-to promote our message and apply pressure.
Shine a spotlight on the plaintiff's attorneys involved in the cases to call into question their credibility and personal profit motive.
To accomplish these goals and objectives, we recommend a three-track strategy:
Track One: Identify and conduct research on the primary plaintiff's attorneys involved in the suits, including Mike Moore, and demonstrate their methods and personal monetary motivations.
It goes on. The campaign was partly successful, for at least one early Wall Street Journal editorial attacking Moore and these lawsuits, bragging that “team ATRA worked with this writer over the last couple of weeks on this using research we produced.”
No doubt. But what they couldn’t do is stop state and local governments from moving forward, and not only against Purdue, but also against the Sackler's. , the Attorneys General of New York, Massachusetts, Connecticut, Rhode Island and Utah “have filed suit against members of the [Sackler] family [while] last month, a coalition of more than 500 counties, cities and Native American tribes named the Sackler’s in a case in the Southern District of New York, bringing the family into a bundle of 1,600 opioids cases being overseen by a federal court judge in Cleveland.”
So now there’s a new corporate strategy brewing. The U.S. Chamber of Commerce – the nation’s largest lobby force which represents the drug industry among many others - has stepped in. The Chamber wants new state-based legislation with a very targeted goal: wiping out all the city and county lawsuits. And just like ATRA, the Chamber is starting this by planting stories in major publications. In this case, it has produced a “” fabricating urgent reasons to end these lawsuits, and trying to get reporters to bite. Bloomberg unfortunately , for one.
This effort is boosting at least a couple different Chamber goals. by USA TODAY, The Arizona Republic and the Center for Public Integrity. The articles discuss, among many things, how corporate and conservative interests are lobbying for state "preemption" bills. Writes the investigative team:
These laws, in effect, allow state legislators to dictate to city councils and county governing boards what they can and cannot do within their jurisdiction….
USA TODAY’s algorithm found more than 100 such bills had been introduced on an expanding array of topics.
Because preemption bills have almost exclusively been advanced by Republicans, many of whom rail against the excessive mandates of Washington, D.C., critics see such legislation as the height of hypocrisy.
"There's real ... hypocrisy in many of these so-called conservative legislators trying to rip away local control when they preached for years that a government that's closest to you ... is most responsive to you," said Dawn Penich-Thacker, who campaigned to overturn Arizona's school-voucher expansion with a public vote.
All I know is, the Bloomberg “U.S. Chamber Warns Cities are Litigating Too Much” makes a whole lot more sense now.