At least four states, and more that a dozen cities and counties, have all sued opioid makers in an effort to reduce unnecessary addiction and deaths, using many of the same tactics and the same lawyers whose legal actions helped slash smoking and led to a $246 billion settlement.
The “Sue the Bastards” technique worked very effectively against big tobacco, and several early settlements in the opioid litigation already suggest that it could be equally effective against this new public health menace which has killed more than 300,000 Americans since the late 1990s and addicted millions more,” says public interest law professor John Banzhaf.
Banzhaf, who has been called “The Law Professor Who Masterminded Litigation Against the Tobacco Industry,” “a Driving Force Behind the Lawsuits That Have Cost Tobacco Companies Billions of Dollars,” and the “Dean of Public Interest Lawyers,” helped start the now-successful movements to have tobacco companies sued by individual smokers, then by nonsmokers, and finally by most of the states.
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That settlement, which Banzhaf helped strengthen by defeating efforts to have Congress endorse the original settlement proposal, not only cost the tobacco industry almost a quarter of trillion dollars, but also included a ban on billboard advertising and the use of cartoon characters to sell cigarettes.
It also led to the downfall of the powerful Tobacco Institute.
Banzhaf notes that the primary legal argument against both cigarette makers and pharmaceutical companies is the same: that both deliberately misrepresented the risks of their products, including the deadly risks posed by addiction.
As additional states like North Carolina and Florida, and individual cities like Miami, Orlando, and Panama City consider whether or not to file similar law suits, Banzhaf suggests powerful arguments for them to – using his favorite phrase – “Sue The Bastards.”
First, he notes, that it is a no-cost and no-risk proposition since many of the attorneys, based upon their successes in suing over cigarettes, are willing to file and litigate the cases on a contingency fee basis at no cost to the state or to its taxpayers. While 25% of the winnings may seem a steep price, it’s a lot better than 100% of nothing, says Banzhaf.
He also notes the old saying, “never underestimate a lawyer on a contingency fee”; suggesting that a private attorney working for one-quarter of whatever money he collects is likely to work a lot harder than a staff attorney in an attorney general’s office working for a fixed salary.
Moreover, such arrangements aren’t “tainted” as several drug companies charged in an effort to sidetrack New Hampshire’s initial involvement in such litigation. The state’s supreme court recently rejected just such a challenge, potentially clearing the way and providing additional encouragement for more states to jump on the bandwagon.
Second, he notes that there have already been some remarkable successes. Purdue Frederick Co. and its executives paid $634.5 million in government penalties and costs to settle civil litigation charging that they mislead the public about the addictive effects of its painkiller OxyContin. Similarly, Purdue Pharma settled an Oxycontin case in 2007 for $75 million.
Earlier this year, two distributors of Oxycontin, Cardinal Health and AmerisourceBergen, were pressured into paying West Virginia $36 million to settle the state’s law suit which alleged that the companies didn’t adequately control distribution of prescription drugs, including painkillers.