Though sometimes overshadowed, tort reform continues to be an issue worthy of state lawmakers’ attention. Studies have consistently found that frivolous tort litigation reduces economic opportunities, jobs, and government revenues, while increasing the costs borne by all Americans. In 2021 alone, 368,078 pending multidistrict litigation (MDL) cases involved mass tort claims, accounting for more than 60 percent of all cases in the tort system. This imposes a crushing burden on the legal system, swelling the backlog of cases, undermining judicial economy, and slowing down more meritorious plaintiffs’ pursuit of justice.
A major factor driving America’s mass tort addiction: contingency-fee arrangements that allow attorneys to earn millions of dollars from class-action lawsuits. And permitting private litigators to enter into such arrangements with local and state governments, as well as state attorneys general across the country, has worsened the problem.
Advocates of these public contingency-fee arrangements typically sell them to the public as efficient partnerships that enable a state to take companies to court without using taxpayer dollars to fund the litigation. But private law firms are not elected by the people and are thus not subject to public oversight. As former candidate for Colorado attorney general George Brauchler recently argued, “The use of public authority for private gain is anathema to a court system predicated on justice and the rule of law.”
These arrangements raise fundamental rule-of-law concerns, aligning the power of the state not with justice but with a profit incentive and potential political motives. In essence, plaintiff lawyers have realized that if they find a hot-button political issue, they can rally enough support to sue on behalf of an entire community, while circumventing traditional class-action strictures.
Far too often, these public contingency-fee arrangements involve public-nuisance tort claims. Public nuisance—distinct from the far more common tort of private nuisance—developed in common law to vindicate the general public’s right to property, health, and communal safety. But modern-day public-nuisance litigation takes us down a dangerous road.
Opioid litigation is a tragic example of how the destabilizing combination of contingency-fee arrangements and public-nuisance doctrine can go haywire. Private law firms are pillaging the public fisc, taking away potential opioid settlement dollars that could help victims who have suffered actual harm. They have delayed and jeopardized the injection of money into communities ravaged by the opioid epidemic.
Washington State provides a particularly troubling case involving a contingency-fee arrangement and a public-nuisance case. The state has blamed the wrong culprit in the opioid crisis and swindled millions of dollars to pad its budget and advance a political agenda, instead of helping those in need. The case, State of Washington v. Johnson & Johnson et al., follows the same flawed playbook advanced by Oklahoma, whose public-nuisance opioid case was swatted down by the Oklahoma Supreme Court in a lopsided 5–1 decision. The court correctly held that public-nuisance doctrine was never intended to permit the judiciary to remediate something as sprawling as the national opioid crisis, at least absent a proper class-action lawsuit. But Washington State is ignoring Oklahoma’s result, barreling ahead and hoping that it can convince a judge that Johnson & Johnson created a public nuisance with its prescription-drug marketing campaign.
It’s hard to understand why Washington would use Oklahoma’s failed arguments and tactics, but plaintiff lawyers are willing to gamble with their clients’ best interests if they have a chance to profit. Washington remains the only state with active litigation against Johnson & Johnson, as Attorney General Bob Ferguson rejected a national settlement that would have provided the state with immediate resources to combat the opioid crisis.
State lawmakers should pass legislation to curtail, or even outright forbid, the cozy contingency-fee arrangements that all too often pose obstacles to substantive justice. Outsourcing the crucial work of state attorneys general to private counsel is corrosive to the very notion of self-governance. State lawmakers should, at a minimum, heavily limit—and ideally, fully proscribe—these arrangements.
Meantime, the Washington Supreme Court should follow the Oklahoma Supreme Court’s lead and reject any further expansions of public-nuisance doctrine.
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