WEBVTT - The Opioid Epidemic and the Courts 0:00:15.356 --> 0:00:22.196 Pushkin from Pushkin Industries. This is Deep Background, the show 0:00:22.236 --> 0:00:25.236 where we explore the stories behind the stories in the news. 0:00:25.636 --> 0:00:31.836 I'm Noah Feldman. In twenty seventeen, more than seventy thousand 0:00:31.876 --> 0:00:35.596 people in the United States died of drug overdoses. Two 0:00:35.676 --> 0:00:39.916 thirds of those deaths were linked to opioids. This opioid 0:00:39.916 --> 0:00:43.676 epidemic has cost the United States two point five trillion 0:00:43.716 --> 0:00:47.436 dollars between twenty fifteen and twenty eighteen, according to an 0:00:47.516 --> 0:00:51.516 estimate recently released by the White House Council of Economic Advisors. 0:00:52.356 --> 0:00:55.596 Now we're addressing this crisis by trying to hold the 0:00:55.636 --> 0:01:00.236 company is responsible to account with the help of the law. 0:01:00.996 --> 0:01:04.316 In order to begin to understand how it's going, it's 0:01:04.316 --> 0:01:08.196 worth looking back to the Tobacco litigation, which is the 0:01:08.316 --> 0:01:11.676 last time that the United States tried to address a 0:01:11.756 --> 0:01:18.436 major public health crisis via lawsuits and litigation. That litigation 0:01:18.516 --> 0:01:21.716 took place mostly in the nineteen nineties, and the way 0:01:21.756 --> 0:01:25.556 it happened is that in almost every state, the attorney 0:01:25.676 --> 0:01:29.596 general of the state, a government official, filed a lawsuit 0:01:29.916 --> 0:01:34.756 on behalf of the state against the major tobacco producing 0:01:35.036 --> 0:01:39.636 companies like Philip Morris and R. J. Reynolds. Then what 0:01:39.756 --> 0:01:43.596 happened is that all of those lawsuits, forty six in total, 0:01:43.916 --> 0:01:48.196 were brought together by the courts and settled in one 0:01:48.196 --> 0:01:52.516 fell swoop. The result was that there was a tremendous 0:01:52.516 --> 0:01:56.756 transfer of money from the big tobacco companies to these 0:01:56.956 --> 0:02:01.436 forty six states, in which in principle, the tobacco companies 0:02:01.516 --> 0:02:04.956 compensated the states for the money that they had spent 0:02:05.396 --> 0:02:10.116 in dealing with the consequences of people using tobacco. On 0:02:10.156 --> 0:02:13.956 the one hand, that settlement satisfied both the state attorneys 0:02:14.036 --> 0:02:17.996 general and the tobacco companies. The state's got an enormous 0:02:17.996 --> 0:02:21.716 amount of money, and the tobacco companies got a definitive 0:02:21.956 --> 0:02:24.956 end to litigation, so they could turn around and tell 0:02:24.996 --> 0:02:28.316 their shareholders there won't be any more lawsuits coming down 0:02:28.396 --> 0:02:32.396 the pike against us. Yet, at the same time, the 0:02:32.476 --> 0:02:36.756 tobacco litigation raised a deep and fundamental question of whether 0:02:36.836 --> 0:02:41.676 the distribution of money that took place was fair. As 0:02:41.716 --> 0:02:44.396 we're about to hear this time when it comes to 0:02:44.396 --> 0:02:48.356 the opioid crisis, the lawsuits are actually a little bit different. 0:02:48.956 --> 0:02:52.556 Instead of being brought only by state attorneys general, the 0:02:52.636 --> 0:02:56.636 lawsuits are also being brought by hundreds and hundreds and 0:02:56.716 --> 0:03:01.476 indeed thousands of local governments around the United States who 0:03:01.516 --> 0:03:04.716 want a piece of the action and are frustrated that 0:03:04.836 --> 0:03:08.156 they did not get direct payments from the tobacco companies 0:03:08.436 --> 0:03:12.836 in the aftermath of the tobacco litigation settlement. As you 0:03:12.876 --> 0:03:16.436 can tell, these issues are tricky and they are legal, 0:03:17.036 --> 0:03:20.076 and so we turned to Professor Abby Gluck of the 0:03:20.156 --> 0:03:23.836 Yale Law School. She is director of the Solomon Center 0:03:24.036 --> 0:03:27.236 for Health Law and Policy at Yale, and she is 0:03:27.316 --> 0:03:33.396 an expert in the vagaries and complexities of the opioid litigation. Abby, 0:03:33.396 --> 0:03:38.356 We're starting to hear lots of headlines about lawsuits with 0:03:38.476 --> 0:03:42.916 big settlements against drug companies. We're hearing about settlements that 0:03:42.956 --> 0:03:46.116 the companies are reaching voluntarily before a case goes to trial. 0:03:46.916 --> 0:03:50.276 Why are we hearing this? Who thinks that lawsuits are 0:03:50.276 --> 0:03:53.036 the way to solve a problem like the opioid crisis. 0:03:53.116 --> 0:03:55.956 So there is no health law experts who thinks that 0:03:56.116 --> 0:03:59.396 litigation is the way to solve a massive public health crisis. 0:03:59.916 --> 0:04:05.476 Of course, stakeholders turned to other venues first, most prominently legislatures. 0:04:05.516 --> 0:04:09.116 State legislatures were asked to act if Congress was asked 0:04:09.236 --> 0:04:12.836 to act. Congress pass a relatively toothless by partisan bill 0:04:12.916 --> 0:04:15.556 that threw money at the problem but didn't actually address 0:04:15.836 --> 0:04:18.596 most of the systemic problems that have led to the 0:04:18.676 --> 0:04:21.516 cause of the opioid crisis. And in the States, almost 0:04:21.556 --> 0:04:24.476 every state has passed a slew of laws, things like 0:04:25.036 --> 0:04:27.716 laws that limit the number of pills that doctors can prescribe, 0:04:27.756 --> 0:04:30.276 but it just hasn't been enough to get states and 0:04:30.316 --> 0:04:33.116 local governments the relief they need. And what they need 0:04:33.196 --> 0:04:36.756 right now is money and any money, and they're not 0:04:36.796 --> 0:04:39.196 getting that from their governments. They're looking to the courts 0:04:39.236 --> 0:04:41.556 to help them with that. Can I ask us somewhat 0:04:41.636 --> 0:04:45.716 cynical questions, So is somebody gaining by these lawsuits? I mean, 0:04:45.756 --> 0:04:49.876 are there private attorneys who are representing parties who have 0:04:49.956 --> 0:04:53.556 money on the table to make through contingent fee agreements 0:04:53.676 --> 0:04:57.156 or is this whole process somewhat less bound up in 0:04:57.196 --> 0:05:01.876 those kinds of lawyer incentives than say, the tobacco lawsuits were. No, 0:05:02.076 --> 0:05:05.796 there's definitely a lawyering story here. To really understand the 0:05:05.836 --> 0:05:09.676 lawyering story, you have to understand the political economy of 0:05:09.716 --> 0:05:14.156 the landscape of the opioid litigation. So There are about 0:05:14.236 --> 0:05:17.156 twenty eight hundred cases that have currently been filed, and 0:05:17.196 --> 0:05:19.636 they've been filed by a mix of plaintiffs. Some of 0:05:19.636 --> 0:05:22.876 those plaintiffs are Native American tribes, some of those plaintiffs 0:05:22.916 --> 0:05:26.036 are state attorneys general, and those plaintiffs are represented by 0:05:26.036 --> 0:05:31.796 their typical councils. Then there are thousands of cases that 0:05:31.836 --> 0:05:34.356 have been filed by state and local governments, and that 0:05:34.516 --> 0:05:38.556 is a new variety, a new thread that we did 0:05:38.596 --> 0:05:41.876 not see in the tobacco litigation and arguably comes from 0:05:41.916 --> 0:05:45.756 the tobacco history because when the tobacco settlements were given 0:05:45.756 --> 0:05:49.076 out several decades ago, money local governments felt that they 0:05:49.116 --> 0:05:51.676 got the shaft. They felt that they were not given 0:05:51.716 --> 0:05:53.676 the money they needed, that the money went into state 0:05:53.716 --> 0:05:56.596 general treasuries, that the money was not actually directed at 0:05:56.636 --> 0:05:59.676 tobacco cessation. So they were very open to the idea 0:05:59.756 --> 0:06:05.476 of bringing lawsuits themselves. The plaintiffs bar approached those local 0:06:05.516 --> 0:06:09.316 governments offers represent them on a contingency fee basis, it's 0:06:09.316 --> 0:06:12.636 effectively risk free, and have brought those cases into court. 0:06:12.676 --> 0:06:15.196 And that is why you're seeing thousands of cases brought 0:06:15.236 --> 0:06:17.956 by local governments as well as state attorneys general and 0:06:18.436 --> 0:06:21.116 to be frank many of the state attorneys general are 0:06:21.236 --> 0:06:25.236 very unhappy that there is this local thread to the 0:06:25.316 --> 0:06:27.756 litigation because they have made the argument that they're the 0:06:27.796 --> 0:06:29.596 ones who are supposed to be suing on behalf of 0:06:29.596 --> 0:06:31.436 the state. They're the ones who are supposed to be 0:06:31.476 --> 0:06:34.996 negotiating with these companies. So this is a fascinating issue 0:06:34.996 --> 0:06:37.556 that you're describing here, So tell me if I'm getting 0:06:37.556 --> 0:06:40.476 it right. As a result of the tobacco litigation, in 0:06:40.516 --> 0:06:43.236 which local governments rather than state governments, feel like they 0:06:43.236 --> 0:06:44.636 didn't get all the money that they could have gone, 0:06:44.716 --> 0:06:45.876 or they didn't get all the money that was on 0:06:45.916 --> 0:06:48.636 the table, they decided they were willing to bring suits, 0:06:48.676 --> 0:06:51.956 and they have private lawyers representing them who stand to 0:06:51.996 --> 0:06:54.356 make money, unlike when a state suits. If it's a 0:06:54.356 --> 0:06:56.756 state attorney general's office, they don't stand to make any 0:06:56.796 --> 0:06:59.876 individual or personal money as a result of the lawsuit. 0:07:00.356 --> 0:07:03.076 So the bottom line, though, is that with two eight 0:07:03.156 --> 0:07:08.236 hundred cases, you've got a way more complicated landscape of 0:07:08.316 --> 0:07:11.676 litigation to your term than existed even for the pretty 0:07:11.756 --> 0:07:15.356 darn complicated tobacco litigation. Oh yeah, but actually now it's 0:07:15.436 --> 0:07:18.276 much more complicated than that because what you have to 0:07:18.356 --> 0:07:22.316 keep in mind is only about two thousand localities have sued, 0:07:22.356 --> 0:07:25.796 but there are thirty thousand other cities and counties across 0:07:25.836 --> 0:07:29.116 the United States. And everybody knows that when these two 0:07:29.156 --> 0:07:32.476 thousand localities sue for X number of dollars, the next 0:07:32.556 --> 0:07:34.156 day we're going to see a couple of thousand more 0:07:34.236 --> 0:07:36.356 bringing new suits, in a couple of thousand more bringing 0:07:36.356 --> 0:07:39.476 new suits. So the whole ballgame for the last year 0:07:39.876 --> 0:07:43.916 has been trying to get everybody's arms around the entire 0:07:43.996 --> 0:07:46.916 scope of liability. And that's not just these twenty eight 0:07:47.036 --> 0:07:50.236 hundred cases. It's every possible case that might come after 0:07:50.716 --> 0:07:52.396 that is always in the mind of the parties that 0:07:52.436 --> 0:07:54.596 are trying to settle. That has been the challenge from 0:07:54.636 --> 0:07:59.236 the beginning of how to effectively get global peace, even 0:07:59.236 --> 0:08:01.676 though only a small fraction of the local governments are 0:08:01.716 --> 0:08:04.796 actually currently in the case. So lay it out for us, 0:08:04.956 --> 0:08:09.076 what are the possible avenues to get what a lawyer 0:08:09.236 --> 0:08:12.076 would call global peace and what a company would call 0:08:12.436 --> 0:08:14.796 Please nobody sue us anymore. You know, we've paid off 0:08:14.836 --> 0:08:16.716 all the money we have to pay out, So what 0:08:16.796 --> 0:08:19.316 are the possible paths to getting to the end of 0:08:19.356 --> 0:08:21.076 all of this, So I have to give you a 0:08:21.116 --> 0:08:24.276 little more background on the political landscape. So, as you know, 0:08:24.956 --> 0:08:26.836 we have state courts in this country and we have 0:08:26.876 --> 0:08:30.396 federal courts in this country, and neither has control over 0:08:30.436 --> 0:08:33.356 what happens in the other side. So on the federal side, 0:08:33.636 --> 0:08:37.236 we have several different mechanisms that allow course to aggregate 0:08:37.956 --> 0:08:40.756 litigation when loss of similar cases are filed to try 0:08:40.756 --> 0:08:44.476 to get to a global resolution. One of those class actions. 0:08:44.916 --> 0:08:47.476 In the context of the opioid litigation, class actions have 0:08:47.636 --> 0:08:51.596 not been viewed as the answer because the Supreme Court 0:08:51.636 --> 0:08:54.996 has made it very difficult to bring class actions when 0:08:54.996 --> 0:08:58.196 it comes to cases that involve health. The Supreme Court 0:08:58.276 --> 0:09:01.916 requires a lot of commonality in certifying a class and 0:09:01.956 --> 0:09:03.836 it's very hard to prove that people are harmed in 0:09:03.836 --> 0:09:05.876 the same way when it comes to health cases. To 0:09:06.036 --> 0:09:08.676 everybody is of the position that you're not gonna be 0:09:08.716 --> 0:09:10.636 able to get your arms around the complete scope of 0:09:10.716 --> 0:09:13.636 litigation just by using a class action. So what are 0:09:13.636 --> 0:09:16.036 the other federal solutions available before we get to this 0:09:16.116 --> 0:09:19.196 question of states? So when class actions are not available, 0:09:19.316 --> 0:09:21.836 a different mechanism has kind of stepped into the breach 0:09:21.916 --> 0:09:24.356 to address the problem of mass aggregation, and that's called 0:09:24.356 --> 0:09:28.716 the multidistrict litigation. It's a comes from a federal statue 0:09:28.796 --> 0:09:31.316 twenty eight USC. Fourteen oh seven that was passed about 0:09:31.316 --> 0:09:33.916 fifty years ago to deal with a very different problem 0:09:34.236 --> 0:09:38.236 of utility litigation. In the last couple decades, multi district 0:09:38.276 --> 0:09:41.516 litigation has been resorted to when class actions are not available, 0:09:41.556 --> 0:09:43.836 and the way it works is that it allows the 0:09:43.956 --> 0:09:47.436 consolidation and a single federal core room for pre trial 0:09:47.556 --> 0:09:52.716 resolution of similarly situated claims filed across the country. The 0:09:52.836 --> 0:09:56.516 key is that it's free trial resolution. A class action 0:09:56.956 --> 0:10:00.516 goes to the ultimate trial, the ultimate settlement, but with 0:10:00.556 --> 0:10:03.316 the multidistrict litigation, the idea is that the judge winners 0:10:03.356 --> 0:10:07.076 the claims, tries to streamline things, takes care of discovery 0:10:07.076 --> 0:10:09.956 in a consolidative fashion, and then sends everybody home to 0:10:10.076 --> 0:10:12.476 try the cases on their own jurisdictions. But the fact 0:10:12.476 --> 0:10:15.316 of the matter is that virtually never happens. The very 0:10:15.356 --> 0:10:18.716 fact that big cases are consolidated into an MDL in 0:10:18.756 --> 0:10:23.356 the first place generally signals that everybody thinks a trial 0:10:23.636 --> 0:10:26.756 or individual trials are unrealistic, and the goal of the 0:10:26.836 --> 0:10:30.876 MDL generally is to efficiently settle the cases. That has 0:10:30.876 --> 0:10:34.236 certainly been what's been happening in the opoid litigation. In 0:10:34.276 --> 0:10:37.956 this litigation, about a year ago, about two thousand of 0:10:37.956 --> 0:10:41.196 these cases were consolidated into a single federal courtroom in 0:10:41.236 --> 0:10:44.676 Cleveland for a judge named Dan Polster. That judge said 0:10:44.676 --> 0:10:47.636 in his very first opening statement in the case that 0:10:47.716 --> 0:10:50.156 he was not interested in bringing these cases to trial. 0:10:50.396 --> 0:10:52.916 He thought he was dealing with a massive, ongoing public 0:10:52.956 --> 0:10:55.356 health crisis, and he made clear his goal was to 0:10:55.396 --> 0:10:58.156 settle and to settle quickly. Now, that would be enough 0:10:58.196 --> 0:11:00.836 of a challenge, but you've then got the whole state 0:11:01.196 --> 0:11:04.636 legal landscape. There are several hundred, about four to five 0:11:04.716 --> 0:11:07.836 hundred state cases that have been filed by state attorneys 0:11:07.836 --> 0:11:11.556 general and other plaintiffs, including some localities, some cities and 0:11:11.596 --> 0:11:15.076 counties in their state courts, and the federal court has 0:11:15.156 --> 0:11:18.716 no power, no jurisdiction over those four to five hundred 0:11:18.796 --> 0:11:21.276 state cases. So even if you could get a settlement 0:11:21.556 --> 0:11:24.556 in the MDL in Cleveland in that big case, you're 0:11:24.596 --> 0:11:26.676 not going to have a global settlement because they're still 0:11:26.716 --> 0:11:29.116 going to be several hundred cases left out in the 0:11:29.156 --> 0:11:33.116 state court system. So you're in Cleveland, you're a defendant. 0:11:33.236 --> 0:11:35.636 You're trying to settle these claims. You want to get 0:11:35.676 --> 0:11:39.236 global peace without the class action. The parties in Cleveland 0:11:39.236 --> 0:11:42.876 had to get very creative over the summer. By most account, 0:11:42.916 --> 0:11:46.116 it appears that they put their heads together and effectively 0:11:46.156 --> 0:11:49.996 innovated a brand new form of civil procedure. They have 0:11:50.116 --> 0:11:53.516 suggested that there should be something called a negotiation class 0:11:53.996 --> 0:11:58.316 it's inspired by a class action, and the idea is 0:11:58.756 --> 0:12:03.916 that they're making the argument that the localities in the 0:12:04.036 --> 0:12:07.236 MDL are sufficiently representative of those in the rest of 0:12:07.236 --> 0:12:10.876 the country that notice is given to all of the 0:12:10.916 --> 0:12:15.796 localities across the country. These localities can negotiate on behalf 0:12:15.836 --> 0:12:21.396 of everybody else and settle these cases on behalf of 0:12:21.596 --> 0:12:25.076 all relevant counties, even the ones that are not yet 0:12:25.116 --> 0:12:28.796 in this litigation. Now, that's that's fascinating. This is very 0:12:28.876 --> 0:12:32.116 very important. And I want to pause here because you know, 0:12:32.836 --> 0:12:36.516 from the lawyer's standpoint, everything you're saying crackles off the page. 0:12:36.556 --> 0:12:38.436 But I want us to be clear for non lawyers 0:12:38.476 --> 0:12:41.116 who might be listening. If you're still listening and hot lawyers, 0:12:41.116 --> 0:12:44.636 please don't please don't turn the dial what is going 0:12:44.636 --> 0:12:46.196 on here? And here's what I think would be a 0:12:46.276 --> 0:12:48.596 useful piece of background. I think if you don't go 0:12:48.636 --> 0:12:50.636 to law school, you hear the words class action, you 0:12:50.676 --> 0:12:54.476 think that's something that plaintiffs want. You think that it's 0:12:54.516 --> 0:12:56.956 people who are doing the suing who like the idea 0:12:56.956 --> 0:12:59.076 of a class action because they can combine together the 0:12:59.076 --> 0:13:01.796 claims of lots of different people and get a lot 0:13:01.836 --> 0:13:03.916 of money instead of a little bit of money. But 0:13:04.196 --> 0:13:07.796 once you enter the incredibly arcane and complex world of 0:13:07.876 --> 0:13:10.716 class actions, you discover is there are also lots of 0:13:10.716 --> 0:13:13.596 circumstances where the defendants, the ones who have done the 0:13:13.636 --> 0:13:17.276 harm and are being sued, love class actions because what 0:13:17.356 --> 0:13:19.516 they want is for the case to be over. They 0:13:19.516 --> 0:13:21.956 want to turn around and say to their shareholders, We've 0:13:21.996 --> 0:13:24.596 done everything we're gonna have to do, We've paid out 0:13:24.676 --> 0:13:27.036 our last nickel, and now we can get on with 0:13:27.076 --> 0:13:30.076 the business of being a company again without having these big, 0:13:30.116 --> 0:13:35.396 overhanging potential civil liabilities. So, in the absence of the 0:13:35.476 --> 0:13:38.556 opportunity for a class action, the defendants and correct me 0:13:38.596 --> 0:13:40.756 if I'm going wrong, you're abbey, really are trying to 0:13:40.756 --> 0:13:43.316 find some way to be sure that it's all over 0:13:43.436 --> 0:13:45.516 that they won't settle with one group of people and 0:13:45.516 --> 0:13:47.756 then have another group of people appear and say, hey, 0:13:47.836 --> 0:13:50.196 guess what now, we're suing you. And it sounds, from 0:13:50.236 --> 0:13:53.356 what you're saying, like they're trying to invent, on the 0:13:53.396 --> 0:13:57.916 fly some new legal technology they will allow them to 0:13:57.956 --> 0:14:01.076 be sure after they've settled cases that there won't be 0:14:01.236 --> 0:14:04.236 new cases arising. Am I getting that right? Yeah? I 0:14:04.236 --> 0:14:08.356 think that's right. I would ammendous slightly. I think it 0:14:08.556 --> 0:14:10.996 was a very long thought out process that was over 0:14:11.036 --> 0:14:13.076 the summer, so not on the fly, but also not 0:14:13.236 --> 0:14:17.116 novel to the MDL. So multidistrict litigation because it is 0:14:17.156 --> 0:14:21.356 this wild West form of sevil procedure that stepped into 0:14:21.396 --> 0:14:23.716 the breach to solve a problem that it wasn't really 0:14:23.716 --> 0:14:29.716 designed to is known for innovating new procedural mechanisms. This 0:14:29.796 --> 0:14:33.956 is definitely that on steroids, probably the most extreme version 0:14:33.996 --> 0:14:37.796 of creative procedural innovation that we've seen in MDL. But 0:14:37.916 --> 0:14:41.236 it's not unprecedented in the sense that that's what mdls do. 0:14:41.796 --> 0:14:43.836 That's why some people love them, if why some people 0:14:43.876 --> 0:14:46.796 think they're lawless. But yes, the party's got together and 0:14:46.796 --> 0:14:49.756 they said we need a way to get global peace. 0:14:49.916 --> 0:14:52.276 We need a way to basically settle this case on 0:14:52.316 --> 0:14:55.516 behalf of the entire country, even though only US slice 0:14:55.756 --> 0:14:58.316 of local governments are actually in the case so far. 0:14:58.796 --> 0:15:00.876 We need a way for it to look fair. So 0:15:01.076 --> 0:15:02.676 we are going to create something that looks like a 0:15:02.716 --> 0:15:05.036 class action, even though we can't have a class action. 0:15:05.316 --> 0:15:08.236 We're going to send notice to thirty thousand local governments 0:15:08.276 --> 0:15:10.716 over the next two to tell them we're going to 0:15:10.796 --> 0:15:14.436 negotiate on your behalf unless you opt out, and once 0:15:14.476 --> 0:15:17.716 they opt in, we're going to settle the case and 0:15:17.836 --> 0:15:20.916 hold everybody to that. Now, if that seems wild, it is. 0:15:20.956 --> 0:15:24.196 But remember in a regular class section, that's also what happens. 0:15:24.556 --> 0:15:28.276 Once you put notice out and certify the class, you 0:15:28.316 --> 0:15:31.236 can resolve a case on behalf of all of those parties, 0:15:31.236 --> 0:15:33.156 the ones in the courtroom and the ones who aren't 0:15:33.156 --> 0:15:35.596 in the courtroom. That's what they're trying to do. So 0:15:35.756 --> 0:15:38.196 will it work? I think? I think the big danger 0:15:38.356 --> 0:15:40.196 doubt it's going to be tied up in litigation for 0:15:40.236 --> 0:15:42.716 a very long time. So I would not be surprised 0:15:43.716 --> 0:15:46.316 if this question. Can there be such a thing as 0:15:46.316 --> 0:15:48.796 a negotiation class makes it up to the Supreme Court. 0:15:48.876 --> 0:15:52.396 The reason it wouldn't is that most of the parties 0:15:52.556 --> 0:15:55.516 in these cases like it. Right, the defendant and the 0:15:55.556 --> 0:15:58.876 plaintiffs want such a resolution. The state attorneys general have 0:15:58.996 --> 0:16:01.076 been the ones that are the most opposed thus far. 0:16:01.516 --> 0:16:04.196 They don't like it because it gives their local governments 0:16:04.196 --> 0:16:07.276 a mechanism to settle these cases, even perhaps before the 0:16:07.316 --> 0:16:10.636 state ags can get their own ettlement. So if we 0:16:10.716 --> 0:16:13.156 see these cases going up, it's going to be I 0:16:13.196 --> 0:16:16.676 think large part pushed by the state attorney's general trying 0:16:16.716 --> 0:16:19.036 to get some opposition to these cases in front of 0:16:19.236 --> 0:16:21.796 the Supreme Court. The other issue is that you have 0:16:21.916 --> 0:16:26.756 to have a settlement number for a negotiation class to work. 0:16:27.036 --> 0:16:28.996 We need two pieces. We need this new form of 0:16:29.036 --> 0:16:31.796 civil procedure to be upheld, and then we need to 0:16:31.796 --> 0:16:34.396 get to a settlement in the second place. Can I 0:16:34.396 --> 0:16:37.116 ask this is obviously a very ballpark question, As you 0:16:37.156 --> 0:16:39.836 point out, negotiations can break down at any moment. But 0:16:39.876 --> 0:16:42.396 what's the order of magnitude that a settlement would take? 0:16:42.436 --> 0:16:44.796 How many billions of dollars are we actually talking about? 0:16:45.076 --> 0:16:48.276 So I don't think anybody really knows the complaints that 0:16:48.316 --> 0:16:50.476 were filed in these cases did not ask for any 0:16:50.516 --> 0:16:54.156 specific numbers, so we're talking. You know, it would be 0:16:54.156 --> 0:16:57.436 surprising if the number was less than fifty billion, and 0:16:57.996 --> 0:17:00.476 most likely in the end it'll be something higher than that. 0:17:00.636 --> 0:17:03.796 But again, it's risk, it a hazard, a guess. So 0:17:03.916 --> 0:17:06.556 when that money, if when? And if obviously it's a 0:17:06.556 --> 0:17:08.876 big if. If there is some kind of a settlement 0:17:09.676 --> 0:17:16.436 going from the companies that manufactured the opioids to cities, towns, 0:17:16.436 --> 0:17:20.596 and states, what in the real world is likely actually 0:17:20.716 --> 0:17:22.796 to happen to that money? I mean, some of it 0:17:22.836 --> 0:17:26.276 obviously will go into general budget in places that have 0:17:26.436 --> 0:17:29.956 overspent their existing budgets trying to deal with the fall 0:17:29.956 --> 0:17:32.676 out of the opioid crisis. But will there be any 0:17:32.956 --> 0:17:36.156 prevention element there? Is it all going to be just 0:17:36.236 --> 0:17:39.596 to play catch up against past damages. In the real world, 0:17:39.676 --> 0:17:43.796 what will all that money meet? Well, I think your 0:17:43.996 --> 0:17:45.916 assumption that some of that money is going to go 0:17:45.916 --> 0:17:49.316 into the state general treasury may not ultimately prove to 0:17:49.356 --> 0:17:52.276 be the case. That turned out to be one of 0:17:52.276 --> 0:17:55.956 the most controversial outcomes of the tobacco litigation that the 0:17:55.996 --> 0:17:58.756 money went to state general treasuries and wasn't specifically directed 0:17:58.756 --> 0:18:01.996 toward abatement or prevention. And that's what a lot of 0:18:02.436 --> 0:18:06.236 the plaintiffs in these cases are trying to avoid. There's 0:18:06.276 --> 0:18:09.756 going to be a fight again internal to each date 0:18:09.796 --> 0:18:11.996 about how this money is spent and who controls it. 0:18:12.596 --> 0:18:15.236 In Oklahoma, over the summer, they were supposed to be 0:18:15.276 --> 0:18:17.476 a trial against a bunch of companies. Some of the 0:18:17.516 --> 0:18:21.476 companies settled and the very first settlement, Perdue Pharma, settled 0:18:21.476 --> 0:18:23.876 with the state of Oklahoma and the money was sent 0:18:24.036 --> 0:18:27.036 to a university precisely so that it would not go 0:18:27.076 --> 0:18:31.196 into the state general treasury. The Oklahoma legislature got very upset, 0:18:31.956 --> 0:18:35.036 where's a huge ruckus. So the next settlement that came around, 0:18:35.076 --> 0:18:39.076 which was Tava the generic manufacturer, that money did go 0:18:39.236 --> 0:18:41.476 to the Oklahoma treasury. So that's a great example of 0:18:41.516 --> 0:18:43.436 the kind of fights you're going to see as the 0:18:43.436 --> 0:18:47.956 settlement numbers come out. And that's because politicians or politicians, 0:18:47.956 --> 0:18:50.156 and when money is on the table, each one of 0:18:50.156 --> 0:18:53.876 them is going to want it for their relevant constituency. Yeah, 0:18:53.876 --> 0:18:55.476 it also happens to be the case that when state 0:18:55.516 --> 0:19:00.396 attorneys generals sue the way their recovery funds work, the 0:19:00.436 --> 0:19:03.836 money isn't always directly sent to the target of the 0:19:03.876 --> 0:19:05.796 lawsuits in the first place. Theories that were harmed there 0:19:05.796 --> 0:19:08.676 often go to the general fund. That was what happened 0:19:08.716 --> 0:19:11.836 with Echo. In the case of a public health crisis, 0:19:11.836 --> 0:19:14.196 where there are some counties within a state that have 0:19:14.316 --> 0:19:17.636 been hurting more than other counties and different kinds of harms, 0:19:17.676 --> 0:19:20.116 prevention and treatment are not the same kind of harms, 0:19:20.156 --> 0:19:22.316 money has to go to different places to deal with 0:19:22.316 --> 0:19:26.476 prevention and treatment. It's complicated, and a good use of 0:19:26.476 --> 0:19:31.036 the funds would think through the various causes of the crisis, 0:19:31.076 --> 0:19:32.996 the various ways in which the counties are hurting, and 0:19:33.036 --> 0:19:35.236 trying to make sure those funds are directed in some way. 0:19:35.476 --> 0:19:37.636 What I'm hearing is not optimism from you. I mean, 0:19:37.636 --> 0:19:40.796 I'm not hearing from you either that there's great optimism 0:19:40.836 --> 0:19:43.636 that this will all be solved soon, or that the 0:19:43.836 --> 0:19:46.956 large sum of money that's going to eventually change hands 0:19:47.356 --> 0:19:49.876 is necessarily going to be used in ways that are 0:19:49.916 --> 0:19:53.356 actually in the real world effective. So my first question is, 0:19:53.596 --> 0:19:55.956 on this point, am I right that I'm not hearing 0:19:55.956 --> 0:19:57.556 a lot of optimism. I mean, I think if your 0:19:57.556 --> 0:19:59.556 abbey is a very optimistic person, you want you like 0:19:59.636 --> 0:20:01.476 to solve things and make them work better. But you 0:20:01.516 --> 0:20:03.596 don't sound so optimistic this time. Now. I think you're 0:20:03.636 --> 0:20:07.316 overreading my pessimism, so it's more of a realism. I'm 0:20:07.316 --> 0:20:09.876 optimistic that there's going to be a settlement. I am 0:20:10.036 --> 0:20:12.836 less certain that the money is going to be dispersed 0:20:12.876 --> 0:20:15.636 in ways that are actually targeted to the problem. I'm 0:20:15.716 --> 0:20:20.436 encouraged by some states efforts to start drafting legislation in 0:20:20.516 --> 0:20:23.676 preparation for the receipt of these funds to say when 0:20:23.716 --> 0:20:26.076 money comes in, it has to go to X, Y 0:20:26.116 --> 0:20:27.876 and Z. I think that would be helpful. I also 0:20:27.916 --> 0:20:30.756 think that we have a judge in Cleveland who has 0:20:30.836 --> 0:20:32.596 not been afraid to get his hands in this to 0:20:32.676 --> 0:20:35.996 this and he does not seem to be running out 0:20:36.076 --> 0:20:37.996 the door right So I think when we get a 0:20:37.996 --> 0:20:40.476 settlement from him and an idea world, the settlement is 0:20:40.476 --> 0:20:42.556 going to be structured, is going to say where the 0:20:42.596 --> 0:20:44.796 money is going to go, and Judge Polster is going 0:20:44.836 --> 0:20:49.956 to watch it. But I am less optimistic that money 0:20:50.316 --> 0:20:52.716 is going to solve a public health crisis. I don't 0:20:52.716 --> 0:20:55.396 think any health expert thinks that money can abate a 0:20:55.436 --> 0:20:59.036 public health crisis. Money can help cities put money back 0:20:59.076 --> 0:21:00.836 in their coffers when they've already paid for a health 0:21:00.836 --> 0:21:04.036 public health crisis. But we have fourteen states that haven't 0:21:04.076 --> 0:21:07.196 expanded Medicaid. That's a huge portion of the population that 0:21:07.236 --> 0:21:09.836 has no access to healthcare because they don't have insurance. 0:21:10.356 --> 0:21:12.716 That would do a heck of a lot to help 0:21:12.756 --> 0:21:14.916 the public health crisis. That's a legal solution that has 0:21:14.956 --> 0:21:17.556 nothing to do what's going on in the courtroom. We 0:21:17.636 --> 0:21:20.636 also have some very antiquated federal laws on the books 0:21:20.676 --> 0:21:24.196 that make it extremely difficult for doctors to treat opioid 0:21:24.276 --> 0:21:26.996 use disorder and addiction. It requires you to go to 0:21:26.996 --> 0:21:30.396 a separate location, not your doctor's office, to get methadone. 0:21:30.756 --> 0:21:33.636 That's a barrier, and it actually limits the number of 0:21:33.676 --> 0:21:36.476 patients any one doctor can treat for opioid addiction with 0:21:36.516 --> 0:21:39.076 another drug boot for norphine at a time. We don't 0:21:39.076 --> 0:21:41.916 regulate any other kind of treatment this way. It's any 0:21:41.996 --> 0:21:45.116 Joe Schmo can prescribe an opioid, and when people get addicted, 0:21:45.756 --> 0:21:48.676 it's very hard to treat them. And those are legal problems, 0:21:48.716 --> 0:21:50.796 those are system problems, and none of that is going 0:21:50.836 --> 0:21:54.756 to be solved by this litigation. Does any other country 0:21:54.836 --> 0:21:59.116 on Earth think that litigation is even part of the 0:21:59.156 --> 0:22:02.276 way you should go about addressing crises like these, or 0:22:02.396 --> 0:22:06.236