1 00:00:15,356 --> 00:00:22,196 Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show 2 00:00:22,236 --> 00:00:25,236 Speaker 1: where we explore the stories behind the stories in the news. 3 00:00:25,636 --> 00:00:31,836 Speaker 1: I'm Noah Feldman. In twenty seventeen, more than seventy thousand 4 00:00:31,876 --> 00:00:35,596 Speaker 1: people in the United States died of drug overdoses. Two 5 00:00:35,676 --> 00:00:39,916 Speaker 1: thirds of those deaths were linked to opioids. This opioid 6 00:00:39,916 --> 00:00:43,676 Speaker 1: epidemic has cost the United States two point five trillion 7 00:00:43,716 --> 00:00:47,436 Speaker 1: dollars between twenty fifteen and twenty eighteen, according to an 8 00:00:47,516 --> 00:00:51,516 Speaker 1: estimate recently released by the White House Council of Economic Advisors. 9 00:00:52,356 --> 00:00:55,596 Speaker 1: Now we're addressing this crisis by trying to hold the 10 00:00:55,636 --> 00:01:00,236 Speaker 1: company is responsible to account with the help of the law. 11 00:01:00,996 --> 00:01:04,316 Speaker 1: In order to begin to understand how it's going, it's 12 00:01:04,316 --> 00:01:08,196 Speaker 1: worth looking back to the Tobacco litigation, which is the 13 00:01:08,316 --> 00:01:11,676 Speaker 1: last time that the United States tried to address a 14 00:01:11,756 --> 00:01:18,436 Speaker 1: major public health crisis via lawsuits and litigation. That litigation 15 00:01:18,516 --> 00:01:21,716 Speaker 1: took place mostly in the nineteen nineties, and the way 16 00:01:21,756 --> 00:01:25,556 Speaker 1: it happened is that in almost every state, the attorney 17 00:01:25,676 --> 00:01:29,596 Speaker 1: general of the state, a government official, filed a lawsuit 18 00:01:29,916 --> 00:01:34,756 Speaker 1: on behalf of the state against the major tobacco producing 19 00:01:35,036 --> 00:01:39,636 Speaker 1: companies like Philip Morris and R. J. Reynolds. Then what 20 00:01:39,756 --> 00:01:43,596 Speaker 1: happened is that all of those lawsuits, forty six in total, 21 00:01:43,916 --> 00:01:48,196 Speaker 1: were brought together by the courts and settled in one 22 00:01:48,196 --> 00:01:52,516 Speaker 1: fell swoop. The result was that there was a tremendous 23 00:01:52,516 --> 00:01:56,756 Speaker 1: transfer of money from the big tobacco companies to these 24 00:01:56,956 --> 00:02:01,436 Speaker 1: forty six states, in which in principle, the tobacco companies 25 00:02:01,516 --> 00:02:04,956 Speaker 1: compensated the states for the money that they had spent 26 00:02:05,396 --> 00:02:10,116 Speaker 1: in dealing with the consequences of people using tobacco. On 27 00:02:10,156 --> 00:02:13,956 Speaker 1: the one hand, that settlement satisfied both the state attorneys 28 00:02:14,036 --> 00:02:17,996 Speaker 1: general and the tobacco companies. The state's got an enormous 29 00:02:17,996 --> 00:02:21,716 Speaker 1: amount of money, and the tobacco companies got a definitive 30 00:02:21,956 --> 00:02:24,956 Speaker 1: end to litigation, so they could turn around and tell 31 00:02:24,996 --> 00:02:28,316 Speaker 1: their shareholders there won't be any more lawsuits coming down 32 00:02:28,396 --> 00:02:32,396 Speaker 1: the pike against us. Yet, at the same time, the 33 00:02:32,476 --> 00:02:36,756 Speaker 1: tobacco litigation raised a deep and fundamental question of whether 34 00:02:36,836 --> 00:02:41,676 Speaker 1: the distribution of money that took place was fair. As 35 00:02:41,716 --> 00:02:44,396 Speaker 1: we're about to hear this time when it comes to 36 00:02:44,396 --> 00:02:48,356 Speaker 1: the opioid crisis, the lawsuits are actually a little bit different. 37 00:02:48,956 --> 00:02:52,556 Speaker 1: Instead of being brought only by state attorneys general, the 38 00:02:52,636 --> 00:02:56,636 Speaker 1: lawsuits are also being brought by hundreds and hundreds and 39 00:02:56,716 --> 00:03:01,476 Speaker 1: indeed thousands of local governments around the United States who 40 00:03:01,516 --> 00:03:04,716 Speaker 1: want a piece of the action and are frustrated that 41 00:03:04,836 --> 00:03:08,156 Speaker 1: they did not get direct payments from the tobacco companies 42 00:03:08,436 --> 00:03:12,836 Speaker 1: in the aftermath of the tobacco litigation settlement. As you 43 00:03:12,876 --> 00:03:16,436 Speaker 1: can tell, these issues are tricky and they are legal, 44 00:03:17,036 --> 00:03:20,076 Speaker 1: and so we turned to Professor Abby Gluck of the 45 00:03:20,156 --> 00:03:23,836 Speaker 1: Yale Law School. She is director of the Solomon Center 46 00:03:24,036 --> 00:03:27,236 Speaker 1: for Health Law and Policy at Yale, and she is 47 00:03:27,316 --> 00:03:33,396 Speaker 1: an expert in the vagaries and complexities of the opioid litigation. Abby, 48 00:03:33,396 --> 00:03:38,356 Speaker 1: We're starting to hear lots of headlines about lawsuits with 49 00:03:38,476 --> 00:03:42,916 Speaker 1: big settlements against drug companies. We're hearing about settlements that 50 00:03:42,956 --> 00:03:46,116 Speaker 1: the companies are reaching voluntarily before a case goes to trial. 51 00:03:46,916 --> 00:03:50,276 Speaker 1: Why are we hearing this? Who thinks that lawsuits are 52 00:03:50,276 --> 00:03:53,036 Speaker 1: the way to solve a problem like the opioid crisis. 53 00:03:53,116 --> 00:03:55,956 Speaker 1: So there is no health law experts who thinks that 54 00:03:56,116 --> 00:03:59,396 Speaker 1: litigation is the way to solve a massive public health crisis. 55 00:03:59,916 --> 00:04:05,476 Speaker 1: Of course, stakeholders turned to other venues first, most prominently legislatures. 56 00:04:05,516 --> 00:04:09,116 Speaker 1: State legislatures were asked to act if Congress was asked 57 00:04:09,236 --> 00:04:12,836 Speaker 1: to act. Congress pass a relatively toothless by partisan bill 58 00:04:12,916 --> 00:04:15,556 Speaker 1: that threw money at the problem but didn't actually address 59 00:04:15,836 --> 00:04:18,596 Speaker 1: most of the systemic problems that have led to the 60 00:04:18,676 --> 00:04:21,516 Speaker 1: cause of the opioid crisis. And in the States, almost 61 00:04:21,556 --> 00:04:24,476 Speaker 1: every state has passed a slew of laws, things like 62 00:04:25,036 --> 00:04:27,716 Speaker 1: laws that limit the number of pills that doctors can prescribe, 63 00:04:27,756 --> 00:04:30,276 Speaker 1: but it just hasn't been enough to get states and 64 00:04:30,316 --> 00:04:33,116 Speaker 1: local governments the relief they need. And what they need 65 00:04:33,196 --> 00:04:36,756 Speaker 1: right now is money and any money, and they're not 66 00:04:36,796 --> 00:04:39,196 Speaker 1: getting that from their governments. They're looking to the courts 67 00:04:39,236 --> 00:04:41,556 Speaker 1: to help them with that. Can I ask us somewhat 68 00:04:41,636 --> 00:04:45,716 Speaker 1: cynical questions, So is somebody gaining by these lawsuits? I mean, 69 00:04:45,756 --> 00:04:49,876 Speaker 1: are there private attorneys who are representing parties who have 70 00:04:49,956 --> 00:04:53,556 Speaker 1: money on the table to make through contingent fee agreements 71 00:04:53,676 --> 00:04:57,156 Speaker 1: or is this whole process somewhat less bound up in 72 00:04:57,196 --> 00:05:01,876 Speaker 1: those kinds of lawyer incentives than say, the tobacco lawsuits were. No, 73 00:05:02,076 --> 00:05:05,796 Speaker 1: there's definitely a lawyering story here. To really understand the 74 00:05:05,836 --> 00:05:09,676 Speaker 1: lawyering story, you have to understand the political economy of 75 00:05:09,716 --> 00:05:14,156 Speaker 1: the landscape of the opioid litigation. So There are about 76 00:05:14,236 --> 00:05:17,156 Speaker 1: twenty eight hundred cases that have currently been filed, and 77 00:05:17,196 --> 00:05:19,636 Speaker 1: they've been filed by a mix of plaintiffs. Some of 78 00:05:19,636 --> 00:05:22,876 Speaker 1: those plaintiffs are Native American tribes, some of those plaintiffs 79 00:05:22,916 --> 00:05:26,036 Speaker 1: are state attorneys general, and those plaintiffs are represented by 80 00:05:26,036 --> 00:05:31,796 Speaker 1: their typical councils. Then there are thousands of cases that 81 00:05:31,836 --> 00:05:34,356 Speaker 1: have been filed by state and local governments, and that 82 00:05:34,516 --> 00:05:38,556 Speaker 1: is a new variety, a new thread that we did 83 00:05:38,596 --> 00:05:41,876 Speaker 1: not see in the tobacco litigation and arguably comes from 84 00:05:41,916 --> 00:05:45,756 Speaker 1: the tobacco history because when the tobacco settlements were given 85 00:05:45,756 --> 00:05:49,076 Speaker 1: out several decades ago, money local governments felt that they 86 00:05:49,116 --> 00:05:51,676 Speaker 1: got the shaft. They felt that they were not given 87 00:05:51,716 --> 00:05:53,676 Speaker 1: the money they needed, that the money went into state 88 00:05:53,716 --> 00:05:56,596 Speaker 1: general treasuries, that the money was not actually directed at 89 00:05:56,636 --> 00:05:59,676 Speaker 1: tobacco cessation. So they were very open to the idea 90 00:05:59,756 --> 00:06:05,476 Speaker 1: of bringing lawsuits themselves. The plaintiffs bar approached those local 91 00:06:05,516 --> 00:06:09,316 Speaker 1: governments offers represent them on a contingency fee basis, it's 92 00:06:09,316 --> 00:06:12,636 Speaker 1: effectively risk free, and have brought those cases into court. 93 00:06:12,676 --> 00:06:15,196 Speaker 1: And that is why you're seeing thousands of cases brought 94 00:06:15,236 --> 00:06:17,956 Speaker 1: by local governments as well as state attorneys general and 95 00:06:18,436 --> 00:06:21,116 Speaker 1: to be frank many of the state attorneys general are 96 00:06:21,236 --> 00:06:25,236 Speaker 1: very unhappy that there is this local thread to the 97 00:06:25,316 --> 00:06:27,756 Speaker 1: litigation because they have made the argument that they're the 98 00:06:27,796 --> 00:06:29,596 Speaker 1: ones who are supposed to be suing on behalf of 99 00:06:29,596 --> 00:06:31,436 Speaker 1: the state. They're the ones who are supposed to be 100 00:06:31,476 --> 00:06:34,996 Speaker 1: negotiating with these companies. So this is a fascinating issue 101 00:06:34,996 --> 00:06:37,556 Speaker 1: that you're describing here, So tell me if I'm getting 102 00:06:37,556 --> 00:06:40,476 Speaker 1: it right. As a result of the tobacco litigation, in 103 00:06:40,516 --> 00:06:43,236 Speaker 1: which local governments rather than state governments, feel like they 104 00:06:43,236 --> 00:06:44,636 Speaker 1: didn't get all the money that they could have gone, 105 00:06:44,716 --> 00:06:45,876 Speaker 1: or they didn't get all the money that was on 106 00:06:45,916 --> 00:06:48,636 Speaker 1: the table, they decided they were willing to bring suits, 107 00:06:48,676 --> 00:06:51,956 Speaker 1: and they have private lawyers representing them who stand to 108 00:06:51,996 --> 00:06:54,356 Speaker 1: make money, unlike when a state suits. If it's a 109 00:06:54,356 --> 00:06:56,756 Speaker 1: state attorney general's office, they don't stand to make any 110 00:06:56,796 --> 00:06:59,876 Speaker 1: individual or personal money as a result of the lawsuit. 111 00:07:00,356 --> 00:07:03,076 Speaker 1: So the bottom line, though, is that with two eight 112 00:07:03,156 --> 00:07:08,236 Speaker 1: hundred cases, you've got a way more complicated landscape of 113 00:07:08,316 --> 00:07:11,676 Speaker 1: litigation to your term than existed even for the pretty 114 00:07:11,756 --> 00:07:15,356 Speaker 1: darn complicated tobacco litigation. Oh yeah, but actually now it's 115 00:07:15,436 --> 00:07:18,276 Speaker 1: much more complicated than that because what you have to 116 00:07:18,356 --> 00:07:22,316 Speaker 1: keep in mind is only about two thousand localities have sued, 117 00:07:22,356 --> 00:07:25,796 Speaker 1: but there are thirty thousand other cities and counties across 118 00:07:25,836 --> 00:07:29,116 Speaker 1: the United States. And everybody knows that when these two 119 00:07:29,156 --> 00:07:32,476 Speaker 1: thousand localities sue for X number of dollars, the next 120 00:07:32,556 --> 00:07:34,156 Speaker 1: day we're going to see a couple of thousand more 121 00:07:34,236 --> 00:07:36,356 Speaker 1: bringing new suits, in a couple of thousand more bringing 122 00:07:36,356 --> 00:07:39,476 Speaker 1: new suits. So the whole ballgame for the last year 123 00:07:39,876 --> 00:07:43,916 Speaker 1: has been trying to get everybody's arms around the entire 124 00:07:43,996 --> 00:07:46,916 Speaker 1: scope of liability. And that's not just these twenty eight 125 00:07:47,036 --> 00:07:50,236 Speaker 1: hundred cases. It's every possible case that might come after 126 00:07:50,716 --> 00:07:52,396 Speaker 1: that is always in the mind of the parties that 127 00:07:52,436 --> 00:07:54,596 Speaker 1: are trying to settle. That has been the challenge from 128 00:07:54,636 --> 00:07:59,236 Speaker 1: the beginning of how to effectively get global peace, even 129 00:07:59,236 --> 00:08:01,676 Speaker 1: though only a small fraction of the local governments are 130 00:08:01,716 --> 00:08:04,796 Speaker 1: actually currently in the case. So lay it out for us, 131 00:08:04,956 --> 00:08:09,076 Speaker 1: what are the possible avenues to get what a lawyer 132 00:08:09,236 --> 00:08:12,076 Speaker 1: would call global peace and what a company would call 133 00:08:12,436 --> 00:08:14,796 Speaker 1: Please nobody sue us anymore. You know, we've paid off 134 00:08:14,836 --> 00:08:16,716 Speaker 1: all the money we have to pay out, So what 135 00:08:16,796 --> 00:08:19,316 Speaker 1: are the possible paths to getting to the end of 136 00:08:19,356 --> 00:08:21,076 Speaker 1: all of this, So I have to give you a 137 00:08:21,116 --> 00:08:24,276 Speaker 1: little more background on the political landscape. So, as you know, 138 00:08:24,956 --> 00:08:26,836 Speaker 1: we have state courts in this country and we have 139 00:08:26,876 --> 00:08:30,396 Speaker 1: federal courts in this country, and neither has control over 140 00:08:30,436 --> 00:08:33,356 Speaker 1: what happens in the other side. So on the federal side, 141 00:08:33,636 --> 00:08:37,236 Speaker 1: we have several different mechanisms that allow course to aggregate 142 00:08:37,956 --> 00:08:40,756 Speaker 1: litigation when loss of similar cases are filed to try 143 00:08:40,756 --> 00:08:44,476 Speaker 1: to get to a global resolution. One of those class actions. 144 00:08:44,916 --> 00:08:47,476 Speaker 1: In the context of the opioid litigation, class actions have 145 00:08:47,636 --> 00:08:51,596 Speaker 1: not been viewed as the answer because the Supreme Court 146 00:08:51,636 --> 00:08:54,996 Speaker 1: has made it very difficult to bring class actions when 147 00:08:54,996 --> 00:08:58,196 Speaker 1: it comes to cases that involve health. The Supreme Court 148 00:08:58,276 --> 00:09:01,916 Speaker 1: requires a lot of commonality in certifying a class and 149 00:09:01,956 --> 00:09:03,836 Speaker 1: it's very hard to prove that people are harmed in 150 00:09:03,836 --> 00:09:05,876 Speaker 1: the same way when it comes to health cases. To 151 00:09:06,036 --> 00:09:08,676 Speaker 1: everybody is of the position that you're not gonna be 152 00:09:08,716 --> 00:09:10,636 Speaker 1: able to get your arms around the complete scope of 153 00:09:10,716 --> 00:09:13,636 Speaker 1: litigation just by using a class action. So what are 154 00:09:13,636 --> 00:09:16,036 Speaker 1: the other federal solutions available before we get to this 155 00:09:16,116 --> 00:09:19,196 Speaker 1: question of states? So when class actions are not available, 156 00:09:19,316 --> 00:09:21,836 Speaker 1: a different mechanism has kind of stepped into the breach 157 00:09:21,916 --> 00:09:24,356 Speaker 1: to address the problem of mass aggregation, and that's called 158 00:09:24,356 --> 00:09:28,716 Speaker 1: the multidistrict litigation. It's a comes from a federal statue 159 00:09:28,796 --> 00:09:31,316 Speaker 1: twenty eight USC. Fourteen oh seven that was passed about 160 00:09:31,316 --> 00:09:33,916 Speaker 1: fifty years ago to deal with a very different problem 161 00:09:34,236 --> 00:09:38,236 Speaker 1: of utility litigation. In the last couple decades, multi district 162 00:09:38,276 --> 00:09:41,516 Speaker 1: litigation has been resorted to when class actions are not available, 163 00:09:41,556 --> 00:09:43,836 Speaker 1: and the way it works is that it allows the 164 00:09:43,956 --> 00:09:47,436 Speaker 1: consolidation and a single federal core room for pre trial 165 00:09:47,556 --> 00:09:52,716 Speaker 1: resolution of similarly situated claims filed across the country. The 166 00:09:52,836 --> 00:09:56,516 Speaker 1: key is that it's free trial resolution. A class action 167 00:09:56,956 --> 00:10:00,516 Speaker 1: goes to the ultimate trial, the ultimate settlement, but with 168 00:10:00,556 --> 00:10:03,316 Speaker 1: the multidistrict litigation, the idea is that the judge winners 169 00:10:03,356 --> 00:10:07,076 Speaker 1: the claims, tries to streamline things, takes care of discovery 170 00:10:07,076 --> 00:10:09,956 Speaker 1: in a consolidative fashion, and then sends everybody home to 171 00:10:10,076 --> 00:10:12,476 Speaker 1: try the cases on their own jurisdictions. But the fact 172 00:10:12,476 --> 00:10:15,316 Speaker 1: of the matter is that virtually never happens. The very 173 00:10:15,356 --> 00:10:18,716 Speaker 1: fact that big cases are consolidated into an MDL in 174 00:10:18,756 --> 00:10:23,356 Speaker 1: the first place generally signals that everybody thinks a trial 175 00:10:23,636 --> 00:10:26,756 Speaker 1: or individual trials are unrealistic, and the goal of the 176 00:10:26,836 --> 00:10:30,876 Speaker 1: MDL generally is to efficiently settle the cases. That has 177 00:10:30,876 --> 00:10:34,236 Speaker 1: certainly been what's been happening in the opoid litigation. In 178 00:10:34,276 --> 00:10:37,956 Speaker 1: this litigation, about a year ago, about two thousand of 179 00:10:37,956 --> 00:10:41,196 Speaker 1: these cases were consolidated into a single federal courtroom in 180 00:10:41,236 --> 00:10:44,676 Speaker 1: Cleveland for a judge named Dan Polster. That judge said 181 00:10:44,676 --> 00:10:47,636 Speaker 1: in his very first opening statement in the case that 182 00:10:47,716 --> 00:10:50,156 Speaker 1: he was not interested in bringing these cases to trial. 183 00:10:50,396 --> 00:10:52,916 Speaker 1: He thought he was dealing with a massive, ongoing public 184 00:10:52,956 --> 00:10:55,356 Speaker 1: health crisis, and he made clear his goal was to 185 00:10:55,396 --> 00:10:58,156 Speaker 1: settle and to settle quickly. Now, that would be enough 186 00:10:58,196 --> 00:11:00,836 Speaker 1: of a challenge, but you've then got the whole state 187 00:11:01,196 --> 00:11:04,636 Speaker 1: legal landscape. There are several hundred, about four to five 188 00:11:04,716 --> 00:11:07,836 Speaker 1: hundred state cases that have been filed by state attorneys 189 00:11:07,836 --> 00:11:11,556 Speaker 1: general and other plaintiffs, including some localities, some cities and 190 00:11:11,596 --> 00:11:15,076 Speaker 1: counties in their state courts, and the federal court has 191 00:11:15,156 --> 00:11:18,716 Speaker 1: no power, no jurisdiction over those four to five hundred 192 00:11:18,796 --> 00:11:21,276 Speaker 1: state cases. So even if you could get a settlement 193 00:11:21,556 --> 00:11:24,556 Speaker 1: in the MDL in Cleveland in that big case, you're 194 00:11:24,596 --> 00:11:26,676 Speaker 1: not going to have a global settlement because they're still 195 00:11:26,716 --> 00:11:29,116 Speaker 1: going to be several hundred cases left out in the 196 00:11:29,156 --> 00:11:33,116 Speaker 1: state court system. So you're in Cleveland, you're a defendant. 197 00:11:33,236 --> 00:11:35,636 Speaker 1: You're trying to settle these claims. You want to get 198 00:11:35,676 --> 00:11:39,236 Speaker 1: global peace without the class action. The parties in Cleveland 199 00:11:39,236 --> 00:11:42,876 Speaker 1: had to get very creative over the summer. By most account, 200 00:11:42,916 --> 00:11:46,116 Speaker 1: it appears that they put their heads together and effectively 201 00:11:46,156 --> 00:11:49,996 Speaker 1: innovated a brand new form of civil procedure. They have 202 00:11:50,116 --> 00:11:53,516 Speaker 1: suggested that there should be something called a negotiation class 203 00:11:53,996 --> 00:11:58,316 Speaker 1: it's inspired by a class action, and the idea is 204 00:11:58,756 --> 00:12:03,916 Speaker 1: that they're making the argument that the localities in the 205 00:12:04,036 --> 00:12:07,236 Speaker 1: MDL are sufficiently representative of those in the rest of 206 00:12:07,236 --> 00:12:10,876 Speaker 1: the country that notice is given to all of the 207 00:12:10,916 --> 00:12:15,796 Speaker 1: localities across the country. These localities can negotiate on behalf 208 00:12:15,836 --> 00:12:21,396 Speaker 1: of everybody else and settle these cases on behalf of 209 00:12:21,596 --> 00:12:25,076 Speaker 1: all relevant counties, even the ones that are not yet 210 00:12:25,116 --> 00:12:28,796 Speaker 1: in this litigation. Now, that's that's fascinating. This is very 211 00:12:28,876 --> 00:12:32,116 Speaker 1: very important. And I want to pause here because you know, 212 00:12:32,836 --> 00:12:36,516 Speaker 1: from the lawyer's standpoint, everything you're saying crackles off the page. 213 00:12:36,556 --> 00:12:38,436 Speaker 1: But I want us to be clear for non lawyers 214 00:12:38,476 --> 00:12:41,116 Speaker 1: who might be listening. If you're still listening and hot lawyers, 215 00:12:41,116 --> 00:12:44,636 Speaker 1: please don't please don't turn the dial what is going 216 00:12:44,636 --> 00:12:46,196 Speaker 1: on here? And here's what I think would be a 217 00:12:46,276 --> 00:12:48,596 Speaker 1: useful piece of background. I think if you don't go 218 00:12:48,636 --> 00:12:50,636 Speaker 1: to law school, you hear the words class action, you 219 00:12:50,676 --> 00:12:54,476 Speaker 1: think that's something that plaintiffs want. You think that it's 220 00:12:54,516 --> 00:12:56,956 Speaker 1: people who are doing the suing who like the idea 221 00:12:56,956 --> 00:12:59,076 Speaker 1: of a class action because they can combine together the 222 00:12:59,076 --> 00:13:01,796 Speaker 1: claims of lots of different people and get a lot 223 00:13:01,836 --> 00:13:03,916 Speaker 1: of money instead of a little bit of money. But 224 00:13:04,196 --> 00:13:07,796 Speaker 1: once you enter the incredibly arcane and complex world of 225 00:13:07,876 --> 00:13:10,716 Speaker 1: class actions, you discover is there are also lots of 226 00:13:10,716 --> 00:13:13,596 Speaker 1: circumstances where the defendants, the ones who have done the 227 00:13:13,636 --> 00:13:17,276 Speaker 1: harm and are being sued, love class actions because what 228 00:13:17,356 --> 00:13:19,516 Speaker 1: they want is for the case to be over. They 229 00:13:19,516 --> 00:13:21,956 Speaker 1: want to turn around and say to their shareholders, We've 230 00:13:21,996 --> 00:13:24,596 Speaker 1: done everything we're gonna have to do, We've paid out 231 00:13:24,676 --> 00:13:27,036 Speaker 1: our last nickel, and now we can get on with 232 00:13:27,076 --> 00:13:30,076 Speaker 1: the business of being a company again without having these big, 233 00:13:30,116 --> 00:13:35,396 Speaker 1: overhanging potential civil liabilities. So, in the absence of the 234 00:13:35,476 --> 00:13:38,556 Speaker 1: opportunity for a class action, the defendants and correct me 235 00:13:38,596 --> 00:13:40,756 Speaker 1: if I'm going wrong, you're abbey, really are trying to 236 00:13:40,756 --> 00:13:43,316 Speaker 1: find some way to be sure that it's all over 237 00:13:43,436 --> 00:13:45,516 Speaker 1: that they won't settle with one group of people and 238 00:13:45,516 --> 00:13:47,756 Speaker 1: then have another group of people appear and say, hey, 239 00:13:47,836 --> 00:13:50,196 Speaker 1: guess what now, we're suing you. And it sounds, from 240 00:13:50,236 --> 00:13:53,356 Speaker 1: what you're saying, like they're trying to invent, on the 241 00:13:53,396 --> 00:13:57,916 Speaker 1: fly some new legal technology they will allow them to 242 00:13:57,956 --> 00:14:01,076 Speaker 1: be sure after they've settled cases that there won't be 243 00:14:01,236 --> 00:14:04,236 Speaker 1: new cases arising. Am I getting that right? Yeah? I 244 00:14:04,236 --> 00:14:08,356 Speaker 1: think that's right. I would ammendous slightly. I think it 245 00:14:08,556 --> 00:14:10,996 Speaker 1: was a very long thought out process that was over 246 00:14:11,036 --> 00:14:13,076 Speaker 1: the summer, so not on the fly, but also not 247 00:14:13,236 --> 00:14:17,116 Speaker 1: novel to the MDL. So multidistrict litigation because it is 248 00:14:17,156 --> 00:14:21,356 Speaker 1: this wild West form of sevil procedure that stepped into 249 00:14:21,396 --> 00:14:23,716 Speaker 1: the breach to solve a problem that it wasn't really 250 00:14:23,716 --> 00:14:29,716 Speaker 1: designed to is known for innovating new procedural mechanisms. This 251 00:14:29,796 --> 00:14:33,956 Speaker 1: is definitely that on steroids, probably the most extreme version 252 00:14:33,996 --> 00:14:37,796 Speaker 1: of creative procedural innovation that we've seen in MDL. But 253 00:14:37,916 --> 00:14:41,236 Speaker 1: it's not unprecedented in the sense that that's what mdls do. 254 00:14:41,796 --> 00:14:43,836 Speaker 1: That's why some people love them, if why some people 255 00:14:43,876 --> 00:14:46,796 Speaker 1: think they're lawless. But yes, the party's got together and 256 00:14:46,796 --> 00:14:49,756 Speaker 1: they said we need a way to get global peace. 257 00:14:49,916 --> 00:14:52,276 Speaker 1: We need a way to basically settle this case on 258 00:14:52,316 --> 00:14:55,516 Speaker 1: behalf of the entire country, even though only US slice 259 00:14:55,756 --> 00:14:58,316 Speaker 1: of local governments are actually in the case so far. 260 00:14:58,796 --> 00:15:00,876 Speaker 1: We need a way for it to look fair. So 261 00:15:01,076 --> 00:15:02,676 Speaker 1: we are going to create something that looks like a 262 00:15:02,716 --> 00:15:05,036 Speaker 1: class action, even though we can't have a class action. 263 00:15:05,316 --> 00:15:08,236 Speaker 1: We're going to send notice to thirty thousand local governments 264 00:15:08,276 --> 00:15:10,716 Speaker 1: over the next two to tell them we're going to 265 00:15:10,796 --> 00:15:14,436 Speaker 1: negotiate on your behalf unless you opt out, and once 266 00:15:14,476 --> 00:15:17,716 Speaker 1: they opt in, we're going to settle the case and 267 00:15:17,836 --> 00:15:20,916 Speaker 1: hold everybody to that. Now, if that seems wild, it is. 268 00:15:20,956 --> 00:15:24,196 Speaker 1: But remember in a regular class section, that's also what happens. 269 00:15:24,556 --> 00:15:28,276 Speaker 1: Once you put notice out and certify the class, you 270 00:15:28,316 --> 00:15:31,236 Speaker 1: can resolve a case on behalf of all of those parties, 271 00:15:31,236 --> 00:15:33,156 Speaker 1: the ones in the courtroom and the ones who aren't 272 00:15:33,156 --> 00:15:35,596 Speaker 1: in the courtroom. That's what they're trying to do. So 273 00:15:35,756 --> 00:15:38,196 Speaker 1: will it work? I think? I think the big danger 274 00:15:38,356 --> 00:15:40,196 Speaker 1: doubt it's going to be tied up in litigation for 275 00:15:40,236 --> 00:15:42,716 Speaker 1: a very long time. So I would not be surprised 276 00:15:43,716 --> 00:15:46,316 Speaker 1: if this question. Can there be such a thing as 277 00:15:46,316 --> 00:15:48,796 Speaker 1: a negotiation class makes it up to the Supreme Court. 278 00:15:48,876 --> 00:15:52,396 Speaker 1: The reason it wouldn't is that most of the parties 279 00:15:52,556 --> 00:15:55,516 Speaker 1: in these cases like it. Right, the defendant and the 280 00:15:55,556 --> 00:15:58,876 Speaker 1: plaintiffs want such a resolution. The state attorneys general have 281 00:15:58,996 --> 00:16:01,076 Speaker 1: been the ones that are the most opposed thus far. 282 00:16:01,516 --> 00:16:04,196 Speaker 1: They don't like it because it gives their local governments 283 00:16:04,196 --> 00:16:07,276 Speaker 1: a mechanism to settle these cases, even perhaps before the 284 00:16:07,316 --> 00:16:10,636 Speaker 1: state ags can get their own ettlement. So if we 285 00:16:10,716 --> 00:16:13,156 Speaker 1: see these cases going up, it's going to be I 286 00:16:13,196 --> 00:16:16,676 Speaker 1: think large part pushed by the state attorney's general trying 287 00:16:16,716 --> 00:16:19,036 Speaker 1: to get some opposition to these cases in front of 288 00:16:19,236 --> 00:16:21,796 Speaker 1: the Supreme Court. The other issue is that you have 289 00:16:21,916 --> 00:16:26,756 Speaker 1: to have a settlement number for a negotiation class to work. 290 00:16:27,036 --> 00:16:28,996 Speaker 1: We need two pieces. We need this new form of 291 00:16:29,036 --> 00:16:31,796 Speaker 1: civil procedure to be upheld, and then we need to 292 00:16:31,796 --> 00:16:34,396 Speaker 1: get to a settlement in the second place. Can I 293 00:16:34,396 --> 00:16:37,116 Speaker 1: ask this is obviously a very ballpark question, As you 294 00:16:37,156 --> 00:16:39,836 Speaker 1: point out, negotiations can break down at any moment. But 295 00:16:39,876 --> 00:16:42,396 Speaker 1: what's the order of magnitude that a settlement would take? 296 00:16:42,436 --> 00:16:44,796 Speaker 1: How many billions of dollars are we actually talking about? 297 00:16:45,076 --> 00:16:48,276 Speaker 1: So I don't think anybody really knows the complaints that 298 00:16:48,316 --> 00:16:50,476 Speaker 1: were filed in these cases did not ask for any 299 00:16:50,516 --> 00:16:54,156 Speaker 1: specific numbers, so we're talking. You know, it would be 300 00:16:54,156 --> 00:16:57,436 Speaker 1: surprising if the number was less than fifty billion, and 301 00:16:57,996 --> 00:17:00,476 Speaker 1: most likely in the end it'll be something higher than that. 302 00:17:00,636 --> 00:17:03,796 Speaker 1: But again, it's risk, it a hazard, a guess. So 303 00:17:03,916 --> 00:17:06,556 Speaker 1: when that money, if when? And if obviously it's a 304 00:17:06,556 --> 00:17:08,876 Speaker 1: big if. If there is some kind of a settlement 305 00:17:09,676 --> 00:17:16,436 Speaker 1: going from the companies that manufactured the opioids to cities, towns, 306 00:17:16,436 --> 00:17:20,596 Speaker 1: and states, what in the real world is likely actually 307 00:17:20,716 --> 00:17:22,796 Speaker 1: to happen to that money? I mean, some of it 308 00:17:22,836 --> 00:17:26,276 Speaker 1: obviously will go into general budget in places that have 309 00:17:26,436 --> 00:17:29,956 Speaker 1: overspent their existing budgets trying to deal with the fall 310 00:17:29,956 --> 00:17:32,676 Speaker 1: out of the opioid crisis. But will there be any 311 00:17:32,956 --> 00:17:36,156 Speaker 1: prevention element there? Is it all going to be just 312 00:17:36,236 --> 00:17:39,596 Speaker 1: to play catch up against past damages. In the real world, 313 00:17:39,676 --> 00:17:43,796 Speaker 1: what will all that money meet? Well, I think your 314 00:17:43,996 --> 00:17:45,916 Speaker 1: assumption that some of that money is going to go 315 00:17:45,916 --> 00:17:49,316 Speaker 1: into the state general treasury may not ultimately prove to 316 00:17:49,356 --> 00:17:52,276 Speaker 1: be the case. That turned out to be one of 317 00:17:52,276 --> 00:17:55,956 Speaker 1: the most controversial outcomes of the tobacco litigation that the 318 00:17:55,996 --> 00:17:58,756 Speaker 1: money went to state general treasuries and wasn't specifically directed 319 00:17:58,756 --> 00:18:01,996 Speaker 1: toward abatement or prevention. And that's what a lot of 320 00:18:02,436 --> 00:18:06,236 Speaker 1: the plaintiffs in these cases are trying to avoid. There's 321 00:18:06,276 --> 00:18:09,756 Speaker 1: going to be a fight again internal to each date 322 00:18:09,796 --> 00:18:11,996 Speaker 1: about how this money is spent and who controls it. 323 00:18:12,596 --> 00:18:15,236 Speaker 1: In Oklahoma, over the summer, they were supposed to be 324 00:18:15,276 --> 00:18:17,476 Speaker 1: a trial against a bunch of companies. Some of the 325 00:18:17,516 --> 00:18:21,476 Speaker 1: companies settled and the very first settlement, Perdue Pharma, settled 326 00:18:21,476 --> 00:18:23,876 Speaker 1: with the state of Oklahoma and the money was sent 327 00:18:24,036 --> 00:18:27,036 Speaker 1: to a university precisely so that it would not go 328 00:18:27,076 --> 00:18:31,196 Speaker 1: into the state general treasury. The Oklahoma legislature got very upset, 329 00:18:31,956 --> 00:18:35,036 Speaker 1: where's a huge ruckus. So the next settlement that came around, 330 00:18:35,076 --> 00:18:39,076 Speaker 1: which was Tava the generic manufacturer, that money did go 331 00:18:39,236 --> 00:18:41,476 Speaker 1: to the Oklahoma treasury. So that's a great example of 332 00:18:41,516 --> 00:18:43,436 Speaker 1: the kind of fights you're going to see as the 333 00:18:43,436 --> 00:18:47,956 Speaker 1: settlement numbers come out. And that's because politicians or politicians, 334 00:18:47,956 --> 00:18:50,156 Speaker 1: and when money is on the table, each one of 335 00:18:50,156 --> 00:18:53,876 Speaker 1: them is going to want it for their relevant constituency. Yeah, 336 00:18:53,876 --> 00:18:55,476 Speaker 1: it also happens to be the case that when state 337 00:18:55,516 --> 00:19:00,396 Speaker 1: attorneys generals sue the way their recovery funds work, the 338 00:19:00,436 --> 00:19:03,836 Speaker 1: money isn't always directly sent to the target of the 339 00:19:03,876 --> 00:19:05,796 Speaker 1: lawsuits in the first place. Theories that were harmed there 340 00:19:05,796 --> 00:19:08,676 Speaker 1: often go to the general fund. That was what happened 341 00:19:08,716 --> 00:19:11,836 Speaker 1: with Echo. In the case of a public health crisis, 342 00:19:11,836 --> 00:19:14,196 Speaker 1: where there are some counties within a state that have 343 00:19:14,316 --> 00:19:17,636 Speaker 1: been hurting more than other counties and different kinds of harms, 344 00:19:17,676 --> 00:19:20,116 Speaker 1: prevention and treatment are not the same kind of harms, 345 00:19:20,156 --> 00:19:22,316 Speaker 1: money has to go to different places to deal with 346 00:19:22,316 --> 00:19:26,476 Speaker 1: prevention and treatment. It's complicated, and a good use of 347 00:19:26,476 --> 00:19:31,036 Speaker 1: the funds would think through the various causes of the crisis, 348 00:19:31,076 --> 00:19:32,996 Speaker 1: the various ways in which the counties are hurting, and 349 00:19:33,036 --> 00:19:35,236 Speaker 1: trying to make sure those funds are directed in some way. 350 00:19:35,476 --> 00:19:37,636 Speaker 1: What I'm hearing is not optimism from you. I mean, 351 00:19:37,636 --> 00:19:40,796 Speaker 1: I'm not hearing from you either that there's great optimism 352 00:19:40,836 --> 00:19:43,636 Speaker 1: that this will all be solved soon, or that the 353 00:19:43,836 --> 00:19:46,956 Speaker 1: large sum of money that's going to eventually change hands 354 00:19:47,356 --> 00:19:49,876 Speaker 1: is necessarily going to be used in ways that are 355 00:19:49,916 --> 00:19:53,356 Speaker 1: actually in the real world effective. So my first question is, 356 00:19:53,596 --> 00:19:55,956 Speaker 1: on this point, am I right that I'm not hearing 357 00:19:55,956 --> 00:19:57,556 Speaker 1: a lot of optimism. I mean, I think if your 358 00:19:57,556 --> 00:19:59,556 Speaker 1: abbey is a very optimistic person, you want you like 359 00:19:59,636 --> 00:20:01,476 Speaker 1: to solve things and make them work better. But you 360 00:20:01,516 --> 00:20:03,596 Speaker 1: don't sound so optimistic this time. Now. I think you're 361 00:20:03,636 --> 00:20:07,316 Speaker 1: overreading my pessimism, so it's more of a realism. I'm 362 00:20:07,316 --> 00:20:09,876 Speaker 1: optimistic that there's going to be a settlement. I am 363 00:20:10,036 --> 00:20:12,836 Speaker 1: less certain that the money is going to be dispersed 364 00:20:12,876 --> 00:20:15,636 Speaker 1: in ways that are actually targeted to the problem. I'm 365 00:20:15,716 --> 00:20:20,436 Speaker 1: encouraged by some states efforts to start drafting legislation in 366 00:20:20,516 --> 00:20:23,676 Speaker 1: preparation for the receipt of these funds to say when 367 00:20:23,716 --> 00:20:26,076 Speaker 1: money comes in, it has to go to X, Y 368 00:20:26,116 --> 00:20:27,876 Speaker 1: and Z. I think that would be helpful. I also 369 00:20:27,916 --> 00:20:30,756 Speaker 1: think that we have a judge in Cleveland who has 370 00:20:30,836 --> 00:20:32,596 Speaker 1: not been afraid to get his hands in this to 371 00:20:32,676 --> 00:20:35,996 Speaker 1: this and he does not seem to be running out 372 00:20:36,076 --> 00:20:37,996 Speaker 1: the door right So I think when we get a 373 00:20:37,996 --> 00:20:40,476 Speaker 1: settlement from him and an idea world, the settlement is 374 00:20:40,476 --> 00:20:42,556 Speaker 1: going to be structured, is going to say where the 375 00:20:42,596 --> 00:20:44,796 Speaker 1: money is going to go, and Judge Polster is going 376 00:20:44,836 --> 00:20:49,956 Speaker 1: to watch it. But I am less optimistic that money 377 00:20:50,316 --> 00:20:52,716 Speaker 1: is going to solve a public health crisis. I don't 378 00:20:52,716 --> 00:20:55,396 Speaker 1: think any health expert thinks that money can abate a 379 00:20:55,436 --> 00:20:59,036 Speaker 1: public health crisis. Money can help cities put money back 380 00:20:59,076 --> 00:21:00,836 Speaker 1: in their coffers when they've already paid for a health 381 00:21:00,836 --> 00:21:04,036 Speaker 1: public health crisis. But we have fourteen states that haven't 382 00:21:04,076 --> 00:21:07,196 Speaker 1: expanded Medicaid. That's a huge portion of the population that 383 00:21:07,236 --> 00:21:09,836 Speaker 1: has no access to healthcare because they don't have insurance. 384 00:21:10,356 --> 00:21:12,716 Speaker 1: That would do a heck of a lot to help 385 00:21:12,756 --> 00:21:14,916 Speaker 1: the public health crisis. That's a legal solution that has 386 00:21:14,956 --> 00:21:17,556 Speaker 1: nothing to do what's going on in the courtroom. We 387 00:21:17,636 --> 00:21:20,636 Speaker 1: also have some very antiquated federal laws on the books 388 00:21:20,676 --> 00:21:24,196 Speaker 1: that make it extremely difficult for doctors to treat opioid 389 00:21:24,276 --> 00:21:26,996 Speaker 1: use disorder and addiction. It requires you to go to 390 00:21:26,996 --> 00:21:30,396 Speaker 1: a separate location, not your doctor's office, to get methadone. 391 00:21:30,756 --> 00:21:33,636 Speaker 1: That's a barrier, and it actually limits the number of 392 00:21:33,676 --> 00:21:36,476 Speaker 1: patients any one doctor can treat for opioid addiction with 393 00:21:36,516 --> 00:21:39,076 Speaker 1: another drug boot for norphine at a time. We don't 394 00:21:39,076 --> 00:21:41,916 Speaker 1: regulate any other kind of treatment this way. It's any 395 00:21:41,996 --> 00:21:45,116 Speaker 1: Joe Schmo can prescribe an opioid, and when people get addicted, 396 00:21:45,756 --> 00:21:48,676 Speaker 1: it's very hard to treat them. And those are legal problems, 397 00:21:48,716 --> 00:21:50,796 Speaker 1: those are system problems, and none of that is going 398 00:21:50,836 --> 00:21:54,756 Speaker 1: to be solved by this litigation. Does any other country 399 00:21:54,836 --> 00:21:59,116 Speaker 1: on Earth think that litigation is even part of the 400 00:21:59,156 --> 00:22:02,276 Speaker 1: way you should go about addressing crises like these, or 401 00:22:02,396 --> 00:22:06,236 Speaker 1: is this a craziness that is distinctively American? You know, 402 00:22:06,316 --> 00:22:09,916 Speaker 1: to my knowledgist is a uniquely American phenomena. But that 403 00:22:10,076 --> 00:22:12,356 Speaker 1: is the backbone of our litigation system. You know, we 404 00:22:12,516 --> 00:22:16,356 Speaker 1: use our litigation system and the adversary system to hold 405 00:22:16,356 --> 00:22:20,196 Speaker 1: the government accountable, to hold parties an accountable pro and con. 406 00:22:20,636 --> 00:22:22,916 Speaker 1: But we are unique in this regard. A lot of 407 00:22:22,916 --> 00:22:26,236 Speaker 1: countries look on us, I think with an eyebrow raised. 408 00:22:26,836 --> 00:22:28,476 Speaker 1: I mean, I think it might have to be more 409 00:22:28,516 --> 00:22:31,476 Speaker 1: than an eyebrows as we walk into this crisis, do 410 00:22:31,476 --> 00:22:34,596 Speaker 1: you have any faith that when there is some other 411 00:22:34,756 --> 00:22:38,596 Speaker 1: similar crisis, the next public health crisis generated by big 412 00:22:38,636 --> 00:22:41,716 Speaker 1: companies of some kind or another, that they would take 413 00:22:41,756 --> 00:22:43,516 Speaker 1: a deep breath before trying to make a lot of 414 00:22:43,556 --> 00:22:47,076 Speaker 1: money on a product like tobacco or like opioids, thinking 415 00:22:47,516 --> 00:22:49,556 Speaker 1: somewhere down the road, we're going to have to pay 416 00:22:49,596 --> 00:22:52,276 Speaker 1: a very high price. Or do you think that rational? 417 00:22:53,156 --> 00:22:56,956 Speaker 1: You know, money maximizing corporate actors in the future would say, 418 00:22:57,436 --> 00:23:00,076 Speaker 1: you know what, it's always a question of rolling the dice. 419 00:23:00,116 --> 00:23:01,876 Speaker 1: Here in the United States, and we always know we 420 00:23:01,916 --> 00:23:03,716 Speaker 1: could get sued whether we did anything bad or not. 421 00:23:04,116 --> 00:23:05,876 Speaker 1: So let's just try to make as much money as 422 00:23:05,916 --> 00:23:09,036 Speaker 1: we can and if we're sued, eventually we'll deal with 423 00:23:09,196 --> 00:23:10,996 Speaker 1: that problem, will be come to it. Because if that's 424 00:23:10,996 --> 00:23:13,596 Speaker 1: the case, then I feel as though we're in a 425 00:23:13,716 --> 00:23:16,676 Speaker 1: kind of repetition compulsion that we just we do the 426 00:23:16,676 --> 00:23:18,796 Speaker 1: same thing again and again and again, and as you say, 427 00:23:18,836 --> 00:23:20,396 Speaker 1: we use the money to abate it, but we don't 428 00:23:20,436 --> 00:23:22,836 Speaker 1: really solve it, you know. I think that that question 429 00:23:23,036 --> 00:23:27,396 Speaker 1: overlooks key factors about both the tobacco cases and the 430 00:23:27,436 --> 00:23:30,156 Speaker 1: opioid cases, and that is that this is not just 431 00:23:30,236 --> 00:23:34,236 Speaker 1: a case of a successful drug that had unforeseen side 432 00:23:34,236 --> 00:23:38,196 Speaker 1: effects that addicted a lot of people and caused a 433 00:23:38,196 --> 00:23:42,196 Speaker 1: lot of health problems. This, at least according to the allegations, 434 00:23:42,916 --> 00:23:46,076 Speaker 1: is like tobacco, is a case in which companies had 435 00:23:46,116 --> 00:23:51,076 Speaker 1: a drug, they knew the drug had addictive and harmful properties, 436 00:23:51,276 --> 00:23:54,756 Speaker 1: and covered that up and then made money off of it. 437 00:23:54,836 --> 00:23:59,476 Speaker 1: So it's not just litigation that is a deterrent, it's 438 00:23:59,476 --> 00:24:03,316 Speaker 1: sort of honest services in corporate dealing that should be 439 00:24:03,356 --> 00:24:06,156 Speaker 1: a deterrent for this. So I don't think you're going 440 00:24:06,236 --> 00:24:09,476 Speaker 1: to stop American capitalist. I'm trying to maximize the office 441 00:24:09,556 --> 00:24:13,276 Speaker 1: from a successful drug that remember, has valid medical uses, 442 00:24:13,676 --> 00:24:17,916 Speaker 1: is approved by the FDA, is necessary for many kinds 443 00:24:17,956 --> 00:24:21,556 Speaker 1: of surgeries and for people dying with cancer. So you know, 444 00:24:21,756 --> 00:24:26,676 Speaker 1: a company, arguably shouldn't you be deterred from producing those 445 00:24:26,756 --> 00:24:29,476 Speaker 1: kinds of drugs because they're helpful to society. But what 446 00:24:29,516 --> 00:24:32,996 Speaker 1: this litigation should hopefully deter companies from doing is a lying, 447 00:24:33,156 --> 00:24:38,036 Speaker 1: covering up, committing arguable acts of fraud on the public 448 00:24:38,436 --> 00:24:41,676 Speaker 1: to get people hooked on drugs that they're representing is 449 00:24:41,756 --> 00:24:44,476 Speaker 1: not addictive. Now, we haven't had a trial, those claims 450 00:24:44,476 --> 00:24:48,316 Speaker 1: haven't improved, but those are the allegations that are being made. 451 00:24:48,716 --> 00:24:51,596 Speaker 1: Those are the kinds of things that we're particularly damaging 452 00:24:51,596 --> 00:24:53,676 Speaker 1: to Johnson and Johnson when they went on trial in 453 00:24:53,716 --> 00:24:57,636 Speaker 1: Ohio and Oklahoma and some public documents came out. I 454 00:24:57,676 --> 00:25:01,196 Speaker 1: think that's why we're seeing this move towards settlement. These 455 00:25:01,236 --> 00:25:03,556 Speaker 1: companies don't want to go on trial. They don't want 456 00:25:03,596 --> 00:25:05,916 Speaker 1: to incur the kind of reputational harm that would come 457 00:25:05,956 --> 00:25:10,036 Speaker 1: from not from trying to maximize profits, but from covering 458 00:25:10,156 --> 00:25:13,516 Speaker 1: up harmful aspects of a drug. That they're aggressively marketing 459 00:25:13,516 --> 00:25:16,156 Speaker 1: and not telling anybody about I think that's a deterrent. 460 00:25:16,276 --> 00:25:18,956 Speaker 1: I hope that's the deterrent, and we'll have to see 461 00:25:19,236 --> 00:25:21,116 Speaker 1: if the numbers are big enough to make that happen. 462 00:25:22,236 --> 00:25:24,116 Speaker 1: Is that enough of a deterrent though, I mean, I mean, 463 00:25:24,156 --> 00:25:26,156 Speaker 1: if you know that when push comes to shove you 464 00:25:26,196 --> 00:25:29,236 Speaker 1: can settle rather than take the embarrassment. Sure it's going 465 00:25:29,316 --> 00:25:30,836 Speaker 1: to cost you some money down the road, but it 466 00:25:30,836 --> 00:25:33,276 Speaker 1: doesn't seem like a very powerful deterrent to lying. I mean, 467 00:25:33,676 --> 00:25:36,516 Speaker 1: you know, if people working for companies have actually lied 468 00:25:36,636 --> 00:25:41,636 Speaker 1: and covered up very dangerous consequences of their products, shouldn't 469 00:25:41,636 --> 00:25:45,236 Speaker 1: we be talking more in terms of criminal sanctions. There 470 00:25:46,836 --> 00:25:48,956 Speaker 1: are of criminal cases that have been filed, so I 471 00:25:48,956 --> 00:25:50,516 Speaker 1: do think that's part of the agin. It's a vague 472 00:25:50,516 --> 00:25:52,476 Speaker 1: part of the puzzle, right, So we have seen a 473 00:25:52,516 --> 00:25:55,116 Speaker 1: bunch of criminal cases. We also are seeing companies going 474 00:25:55,116 --> 00:25:56,956 Speaker 1: out of business over this perdue, farmers going to go 475 00:25:56,996 --> 00:26:00,236 Speaker 1: out of business over this right. So if that's not 476 00:26:00,316 --> 00:26:02,636 Speaker 1: enough of a deterrent, then we need sort of a 477 00:26:02,796 --> 00:26:06,116 Speaker 1: wholesale revamping of our of our legal system. But hopefully 478 00:26:06,116 --> 00:26:10,476 Speaker 1: criminal charges, reputational damage and the potential for going out 479 00:26:10,476 --> 00:26:14,756 Speaker 1: of business should be enough to get companies sacked. Last question, Abby, 480 00:26:14,876 --> 00:26:17,596 Speaker 1: So all of what we've been talking about is about 481 00:26:17,676 --> 00:26:21,556 Speaker 1: trying to hold the pharma company is liable for what 482 00:26:21,636 --> 00:26:25,636 Speaker 1: they've done. Is there something that the rest of us 483 00:26:25,796 --> 00:26:29,996 Speaker 1: consumers should be doing now we're or in the future 484 00:26:30,356 --> 00:26:32,956 Speaker 1: to think about what we might do to try to 485 00:26:32,996 --> 00:26:36,356 Speaker 1: avoid crises like this arising in the future. Or is 486 00:26:36,396 --> 00:26:39,596 Speaker 1: it really just a question of tweaking the system, making 487 00:26:39,636 --> 00:26:43,476 Speaker 1: it work properly, and creating the right incentives so that 488 00:26:43,636 --> 00:26:46,596 Speaker 1: companies that obviously have much more information about the content 489 00:26:46,716 --> 00:26:49,876 Speaker 1: of what they're making and the effects of their products 490 00:26:49,916 --> 00:26:53,356 Speaker 1: than we do can be held responsible. Well, I think 491 00:26:53,356 --> 00:26:55,556 Speaker 1: you have to understand that the opoid crisis was not 492 00:26:55,676 --> 00:27:00,196 Speaker 1: caused by people with back pain taking too many drugs. Right. 493 00:27:00,516 --> 00:27:04,516 Speaker 1: The drugs were put into the market through the FDA 494 00:27:04,676 --> 00:27:08,596 Speaker 1: through medical practice. People did become addicted to them, but 495 00:27:08,636 --> 00:27:13,356 Speaker 1: then they were diverted to recreational use. That recreational market 496 00:27:13,396 --> 00:27:17,916 Speaker 1: picked up significantly. People saw an opportunity. Cheap synthetic versions 497 00:27:17,916 --> 00:27:20,476 Speaker 1: of that drug were then brought in just like other 498 00:27:20,596 --> 00:27:24,196 Speaker 1: drugs like heroin. Right, it's not that different, And so 499 00:27:24,476 --> 00:27:27,116 Speaker 1: I think that where we are right now, in this 500 00:27:27,156 --> 00:27:30,436 Speaker 1: phase of the crisis, it's not a consumer issue anymore. 501 00:27:30,556 --> 00:27:34,156 Speaker 1: It started out as a consumer issue, it has become 502 00:27:34,356 --> 00:27:38,836 Speaker 1: a recreational, street level drug use issue that is of 503 00:27:38,876 --> 00:27:42,956 Speaker 1: a different nature, and so it can't possibly be averted 504 00:27:43,356 --> 00:27:47,676 Speaker 1: by consumers anymore. Consumers can ask doctors questions, consumers can 505 00:27:47,676 --> 00:27:51,796 Speaker 1: try to recognize symptoms of addiction and not be embarrassed 506 00:27:51,836 --> 00:27:54,276 Speaker 1: to go to their doctor and talk about addiction. But 507 00:27:54,396 --> 00:27:58,316 Speaker 1: the crisis got far bigger than doctor's offices. You know, 508 00:27:58,356 --> 00:28:00,636 Speaker 1: a number of years ago, there was an early wave 509 00:28:00,676 --> 00:28:03,516 Speaker 1: of prosecutions what we're called so called pill mills doctors 510 00:28:03,556 --> 00:28:06,436 Speaker 1: that were distributing too many drugs. Where we are now 511 00:28:06,596 --> 00:28:09,436 Speaker 1: is far beyond that. You don't hear about pill mill kings. 512 00:28:09,676 --> 00:28:13,076 Speaker 1: We're hearing about major drug trafficking, worring about people dying 513 00:28:13,116 --> 00:28:15,356 Speaker 1: from a single dose of a drug that looks like 514 00:28:15,396 --> 00:28:18,196 Speaker 1: an opioid but is laced with a synthetic version of 515 00:28:18,196 --> 00:28:20,516 Speaker 1: it that is so dangerous that it can kill a 516 00:28:20,516 --> 00:28:23,356 Speaker 1: teenager with one drug. It's a very different problem than 517 00:28:23,396 --> 00:28:26,956 Speaker 1: just a consumer drug problem. I mean, thank you so 518 00:28:27,036 --> 00:28:30,636 Speaker 1: much for analyzing this, for clarifying it, and for showing us, 519 00:28:30,956 --> 00:28:33,436 Speaker 1: in fact just how hard it is to get a 520 00:28:33,436 --> 00:28:37,156 Speaker 1: solution here, but also for providing some optimism about how 521 00:28:37,196 --> 00:28:39,196 Speaker 1: we're going to work our way through it going forward. 522 00:28:39,236 --> 00:28:40,836 Speaker 1: Thank you very much for your time. Yeah, I hope so, 523 00:28:40,956 --> 00:28:49,156 Speaker 1: thanks so much. Noah. Now for our sound of the week, 524 00:28:49,636 --> 00:28:55,276 Speaker 1: or really two sounds. First, this familiar voice, mister gerbaschof 525 00:28:56,276 --> 00:29:00,636 Speaker 1: teared down this wall. And then just two years later 526 00:29:01,396 --> 00:29:09,516 Speaker 1: this happened. That was the sound of celebration, almost exactly 527 00:29:09,716 --> 00:29:13,036 Speaker 1: thirty years ago, when the Berlin Wall in fact was 528 00:29:13,076 --> 00:29:16,156 Speaker 1: breached and people began to be able to move freely 529 00:29:16,236 --> 00:29:20,596 Speaker 1: back and forth between West and East Berlin. This thirtieth 530 00:29:20,636 --> 00:29:24,276 Speaker 1: anniversary is really, in a sense, the anniversary of the 531 00:29:24,476 --> 00:29:28,916 Speaker 1: end of the Cold War, and it raises a fascinating question. 532 00:29:29,476 --> 00:29:33,036 Speaker 1: Who won. To listen to Ronald Reagan tell it, it 533 00:29:33,116 --> 00:29:36,556 Speaker 1: was the West that won, with its distinctive combination of 534 00:29:36,676 --> 00:29:41,596 Speaker 1: free market economies and liberal democracy. And that's the narrative 535 00:29:41,716 --> 00:29:44,596 Speaker 1: that cut on in much of the world in the 536 00:29:44,636 --> 00:29:48,436 Speaker 1: aftermath of the Cold War. It's certainly the narrative that 537 00:29:48,556 --> 00:29:51,436 Speaker 1: cut on in the West. Decide the thought of itself 538 00:29:51,596 --> 00:29:56,916 Speaker 1: as having won a victory today, it's not so obvious 539 00:29:56,956 --> 00:30:00,236 Speaker 1: who won the Cold War, it is still pretty clear 540 00:30:00,396 --> 00:30:04,756 Speaker 1: that communism as an economic system did lose to capitalism. 541 00:30:05,316 --> 00:30:09,196 Speaker 1: After all, in the direct aftermath of the fall of 542 00:30:09,196 --> 00:30:13,596 Speaker 1: Berlin Wall, the entire Soviet Bloc gave up on communist 543 00:30:13,596 --> 00:30:18,796 Speaker 1: economic organization and headed in the direction of a market economy. Meanwhile, 544 00:30:18,956 --> 00:30:22,196 Speaker 1: in the same years, the government of China, though in 545 00:30:22,356 --> 00:30:27,436 Speaker 1: theory remaining communist, adopted what is essentially a capitalist version 546 00:30:27,796 --> 00:30:33,436 Speaker 1: of state owned business. It's still not Western free market capitalism, 547 00:30:33,636 --> 00:30:36,836 Speaker 1: but it's a distinctive form of Chinese capitalism that the 548 00:30:36,956 --> 00:30:41,156 Speaker 1: Chinese call socialism with Chinese characteristics. That only makes sense 549 00:30:41,196 --> 00:30:43,516 Speaker 1: if you realize that the Chinese characteristics are that it's 550 00:30:43,556 --> 00:30:48,516 Speaker 1: not really socialism. And the consequence of that grand transition 551 00:30:48,756 --> 00:30:53,276 Speaker 1: of formerly communist economies into capitalist economies has been nothing 552 00:30:53,356 --> 00:30:56,796 Speaker 1: short of amazing. China rose to become the number two 553 00:30:56,836 --> 00:30:59,716 Speaker 1: economy in the world, and it's on track eventually to 554 00:30:59,836 --> 00:31:03,036 Speaker 1: exceed the economy of the United States. That was a 555 00:31:03,116 --> 00:31:06,636 Speaker 1: direct objective proof of what could happen when you just 556 00:31:06,756 --> 00:31:12,436 Speaker 1: took away the structure of commun economic organization. No one 557 00:31:12,516 --> 00:31:17,676 Speaker 1: today is a serious communist from an economic standpoint, even 558 00:31:18,076 --> 00:31:23,196 Speaker 1: holdouts like Cuba and North Korea are gradually investing in 559 00:31:23,236 --> 00:31:28,676 Speaker 1: the process of marketizing or in other words, capitalizing their economies. 560 00:31:30,236 --> 00:31:34,236 Speaker 1: Yet the idea that liberal democracy had won a victory 561 00:31:34,556 --> 00:31:40,396 Speaker 1: over unfree forms of authoritarian government looks increasingly doubtful in 562 00:31:40,436 --> 00:31:45,236 Speaker 1: the light of events of recent years. China, the same 563 00:31:45,276 --> 00:31:50,156 Speaker 1: country that adopted capitalism, made no steps whatsoever in the 564 00:31:50,196 --> 00:31:54,556 Speaker 1: direction of liberalizing politics in its country, and no steps 565 00:31:54,596 --> 00:31:59,356 Speaker 1: in the direction of becoming more democratic, despite its authoritarian 566 00:31:59,436 --> 00:32:01,836 Speaker 1: system of government that is in fact only gotten more 567 00:32:01,876 --> 00:32:06,676 Speaker 1: authoritarian in the era of Shijinping. China's economic growth has 568 00:32:06,876 --> 00:32:12,276 Speaker 1: continued partly the influence of this Chinese model. Countries around 569 00:32:12,316 --> 00:32:15,476 Speaker 1: the world that we're experimenting with liberal democracy in the 570 00:32:15,476 --> 00:32:18,956 Speaker 1: aftermath of the Cold War have begun to back away 571 00:32:18,996 --> 00:32:22,196 Speaker 1: from that model. You can think of this in the 572 00:32:22,236 --> 00:32:26,316 Speaker 1: case of countries like Hungry or Turkey that had democracy, 573 00:32:26,596 --> 00:32:30,636 Speaker 1: had elections and then elected strong man leaders, or slowly 574 00:32:30,676 --> 00:32:35,596 Speaker 1: but surely ironing the basic democratic freedoms that we associate 575 00:32:35,756 --> 00:32:39,796 Speaker 1: with liberal government. If you're a country that's today trying 576 00:32:39,836 --> 00:32:42,516 Speaker 1: to figure out how to reform yourself, it's obvious that 577 00:32:42,556 --> 00:32:45,036 Speaker 1: you had head in the direction of greater capitalism, but 578 00:32:45,116 --> 00:32:47,636 Speaker 1: it's not at all obvious that you had head in 579 00:32:47,676 --> 00:32:51,556 Speaker 1: the direction of greater political freedom. And indeed, the rise 580 00:32:51,596 --> 00:32:56,076 Speaker 1: of populism has even undercut liberal democratic institutions in countries 581 00:32:56,076 --> 00:32:58,836 Speaker 1: that we think of as lying in the heartland of 582 00:32:58,876 --> 00:33:02,516 Speaker 1: traditional democracy, countries like the United States in the Donald 583 00:33:02,516 --> 00:33:06,436 Speaker 1: Trump administration, and even countries like Britain, which is, of 584 00:33:06,476 --> 00:33:11,596 Speaker 1: course the original home of modern liberal democracy. What should 585 00:33:11,596 --> 00:33:14,516 Speaker 1: we make of the fact the capitalism is doing great 586 00:33:14,796 --> 00:33:18,596 Speaker 1: but liberal democracy is in a certain amount of trouble. 587 00:33:19,156 --> 00:33:21,076 Speaker 1: The first lesson I think we should take away from 588 00:33:21,116 --> 00:33:23,836 Speaker 1: that is that history takes a long time to play 589 00:33:23,836 --> 00:33:27,356 Speaker 1: itself out. In the Euphoria thirty years ago, after the 590 00:33:27,396 --> 00:33:30,356 Speaker 1: fall of the Berlin Wall, it was easy to imagine 591 00:33:30,476 --> 00:33:33,516 Speaker 1: that every aspect of the West had defeated every aspect 592 00:33:33,516 --> 00:33:36,716 Speaker 1: of communism, and in retrospect it's pretty clear that that 593 00:33:36,836 --> 00:33:42,196 Speaker 1: just wasn't so. The second takeaway is that liberal democracies 594 00:33:42,276 --> 00:33:45,076 Speaker 1: can no longer rest on their laurels and say that 595 00:33:45,116 --> 00:33:47,796 Speaker 1: the reason liberal democracy is a good form of government 596 00:33:48,076 --> 00:33:50,556 Speaker 1: is that it will help you defeat your enemies by 597 00:33:50,636 --> 00:33:53,396 Speaker 1: making your country the richest and strongest country that it 598 00:33:53,436 --> 00:33:56,716 Speaker 1: can possibly be. That argument sounded pretty good in the 599 00:33:56,716 --> 00:33:59,916 Speaker 1: aftermath of the Cold War. That argument sounds terrible today. 600 00:34:00,556 --> 00:34:03,396 Speaker 1: In its place, liberal democracies have to come up with 601 00:34:03,436 --> 00:34:06,676 Speaker 1: a different argument, one that says that democracy is good 602 00:34:06,996 --> 00:34:10,476 Speaker 1: on its own terms. That the reason we should have 603 00:34:10,596 --> 00:34:13,796 Speaker 1: voting is that every human being is genuinely entitled to 604 00:34:13,836 --> 00:34:16,516 Speaker 1: a say that the reason that we have liberal rights 605 00:34:16,836 --> 00:34:19,996 Speaker 1: is that each human being is entitled to be protected 606 00:34:20,196 --> 00:34:23,596 Speaker 1: in his or her fundamental dignity. That the reason we 607 00:34:23,636 --> 00:34:26,116 Speaker 1: have freedom of expression is that part of the human 608 00:34:26,156 --> 00:34:29,036 Speaker 1: experience that makes it worth being alive is the chance 609 00:34:29,036 --> 00:34:32,596 Speaker 1: to express your views and try to influence others. The 610 00:34:32,716 --> 00:34:37,076 Speaker 1: upshot is that democracy cannot say any longer be a 611 00:34:37,116 --> 00:34:40,996 Speaker 1: democrat and win your wars. It must say be a democrat, 612 00:34:41,036 --> 00:34:45,916 Speaker 1: because democracy is inherently valuable, even if it doesn't always 613 00:34:45,956 --> 00:34:48,796 Speaker 1: make your country the most powerful one on the block. 614 00:34:53,316 --> 00:34:56,236 Speaker 1: Deep Background is brought to you by Pushkin Industries. Our 615 00:34:56,276 --> 00:34:59,636 Speaker 1: producer is Lydia Genecott, with engineering by Jason Gambrel and 616 00:34:59,756 --> 00:35:03,636 Speaker 1: Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music 617 00:35:03,716 --> 00:35:06,556 Speaker 1: is composed by Luis GERA special thanks to the Pushkin 618 00:35:06,596 --> 00:35:10,316 Speaker 1: Brass Malcolm Gladwell, Jacob Weisberg, and mi A Lobel. I'm 619 00:35:10,356 --> 00:35:12,756 Speaker 1: Noah Feldman. You can follow me on Twitter at Noah 620 00:35:12,916 --> 00:35:15,356 Speaker 1: R Feldman. This is deep background