Speaker 1: Pushkin from Pushkin Industries. This is Deep Background, the show
Speaker 1: where we explore the stories behind the stories in the news.
Speaker 1: I'm Noah Feldman. In twenty seventeen, more than seventy thousand
Speaker 1: people in the United States died of drug overdoses. Two
Speaker 1: thirds of those deaths were linked to opioids. This opioid
Speaker 1: epidemic has cost the United States two point five trillion
Speaker 1: dollars between twenty fifteen and twenty eighteen, according to an
Speaker 1: estimate recently released by the White House Council of Economic Advisors.
Speaker 1: Now we're addressing this crisis by trying to hold the
Speaker 1: company is responsible to account with the help of the law.
Speaker 1: In order to begin to understand how it's going, it's
Speaker 1: worth looking back to the Tobacco litigation, which is the
Speaker 1: last time that the United States tried to address a
Speaker 1: major public health crisis via lawsuits and litigation. That litigation
Speaker 1: took place mostly in the nineteen nineties, and the way
Speaker 1: it happened is that in almost every state, the attorney
Speaker 1: general of the state, a government official, filed a lawsuit
Speaker 1: on behalf of the state against the major tobacco producing
Speaker 1: companies like Philip Morris and R. J. Reynolds. Then what
Speaker 1: happened is that all of those lawsuits, forty six in total,
Speaker 1: were brought together by the courts and settled in one
Speaker 1: fell swoop. The result was that there was a tremendous
Speaker 1: transfer of money from the big tobacco companies to these
Speaker 1: forty six states, in which in principle, the tobacco companies
Speaker 1: compensated the states for the money that they had spent
Speaker 1: in dealing with the consequences of people using tobacco. On
Speaker 1: the one hand, that settlement satisfied both the state attorneys
Speaker 1: general and the tobacco companies. The state's got an enormous
Speaker 1: amount of money, and the tobacco companies got a definitive
Speaker 1: end to litigation, so they could turn around and tell
Speaker 1: their shareholders there won't be any more lawsuits coming down
Speaker 1: the pike against us. Yet, at the same time, the
Speaker 1: tobacco litigation raised a deep and fundamental question of whether
Speaker 1: the distribution of money that took place was fair. As
Speaker 1: we're about to hear this time when it comes to
Speaker 1: the opioid crisis, the lawsuits are actually a little bit different.
Speaker 1: Instead of being brought only by state attorneys general, the
Speaker 1: lawsuits are also being brought by hundreds and hundreds and
Speaker 1: indeed thousands of local governments around the United States who
Speaker 1: want a piece of the action and are frustrated that
Speaker 1: they did not get direct payments from the tobacco companies
Speaker 1: in the aftermath of the tobacco litigation settlement. As you
Speaker 1: can tell, these issues are tricky and they are legal,
Speaker 1: and so we turned to Professor Abby Gluck of the
Speaker 1: Yale Law School. She is director of the Solomon Center
Speaker 1: for Health Law and Policy at Yale, and she is
Speaker 1: an expert in the vagaries and complexities of the opioid litigation. Abby,
Speaker 1: We're starting to hear lots of headlines about lawsuits with
Speaker 1: big settlements against drug companies. We're hearing about settlements that
Speaker 1: the companies are reaching voluntarily before a case goes to trial.
Speaker 1: Why are we hearing this? Who thinks that lawsuits are
Speaker 1: the way to solve a problem like the opioid crisis.
Speaker 1: So there is no health law experts who thinks that
Speaker 1: litigation is the way to solve a massive public health crisis.
Speaker 1: Of course, stakeholders turned to other venues first, most prominently legislatures.
Speaker 1: State legislatures were asked to act if Congress was asked
Speaker 1: to act. Congress pass a relatively toothless by partisan bill
Speaker 1: that threw money at the problem but didn't actually address
Speaker 1: most of the systemic problems that have led to the
Speaker 1: cause of the opioid crisis. And in the States, almost
Speaker 1: every state has passed a slew of laws, things like
Speaker 1: laws that limit the number of pills that doctors can prescribe,
Speaker 1: but it just hasn't been enough to get states and
Speaker 1: local governments the relief they need. And what they need
Speaker 1: right now is money and any money, and they're not
Speaker 1: getting that from their governments. They're looking to the courts
Speaker 1: to help them with that. Can I ask us somewhat
Speaker 1: cynical questions, So is somebody gaining by these lawsuits? I mean,
Speaker 1: are there private attorneys who are representing parties who have
Speaker 1: money on the table to make through contingent fee agreements
Speaker 1: or is this whole process somewhat less bound up in
Speaker 1: those kinds of lawyer incentives than say, the tobacco lawsuits were. No,
Speaker 1: there's definitely a lawyering story here. To really understand the
Speaker 1: lawyering story, you have to understand the political economy of
Speaker 1: the landscape of the opioid litigation. So There are about
Speaker 1: twenty eight hundred cases that have currently been filed, and
Speaker 1: they've been filed by a mix of plaintiffs. Some of
Speaker 1: those plaintiffs are Native American tribes, some of those plaintiffs
Speaker 1: are state attorneys general, and those plaintiffs are represented by
Speaker 1: their typical councils. Then there are thousands of cases that
Speaker 1: have been filed by state and local governments, and that
Speaker 1: is a new variety, a new thread that we did
Speaker 1: not see in the tobacco litigation and arguably comes from
Speaker 1: the tobacco history because when the tobacco settlements were given
Speaker 1: out several decades ago, money local governments felt that they
Speaker 1: got the shaft. They felt that they were not given
Speaker 1: the money they needed, that the money went into state
Speaker 1: general treasuries, that the money was not actually directed at
Speaker 1: tobacco cessation. So they were very open to the idea
Speaker 1: of bringing lawsuits themselves. The plaintiffs bar approached those local
Speaker 1: governments offers represent them on a contingency fee basis, it's
Speaker 1: effectively risk free, and have brought those cases into court.
Speaker 1: And that is why you're seeing thousands of cases brought
Speaker 1: by local governments as well as state attorneys general and
Speaker 1: to be frank many of the state attorneys general are
Speaker 1: very unhappy that there is this local thread to the
Speaker 1: litigation because they have made the argument that they're the
Speaker 1: ones who are supposed to be suing on behalf of
Speaker 1: the state. They're the ones who are supposed to be
Speaker 1: negotiating with these companies. So this is a fascinating issue
Speaker 1: that you're describing here, So tell me if I'm getting
Speaker 1: it right. As a result of the tobacco litigation, in
Speaker 1: which local governments rather than state governments, feel like they
Speaker 1: didn't get all the money that they could have gone,
Speaker 1: or they didn't get all the money that was on
Speaker 1: the table, they decided they were willing to bring suits,
Speaker 1: and they have private lawyers representing them who stand to
Speaker 1: make money, unlike when a state suits. If it's a
Speaker 1: state attorney general's office, they don't stand to make any
Speaker 1: individual or personal money as a result of the lawsuit.
Speaker 1: So the bottom line, though, is that with two eight
Speaker 1: hundred cases, you've got a way more complicated landscape of
Speaker 1: litigation to your term than existed even for the pretty
Speaker 1: darn complicated tobacco litigation. Oh yeah, but actually now it's
Speaker 1: much more complicated than that because what you have to
Speaker 1: keep in mind is only about two thousand localities have sued,
Speaker 1: but there are thirty thousand other cities and counties across
Speaker 1: the United States. And everybody knows that when these two
Speaker 1: thousand localities sue for X number of dollars, the next
Speaker 1: day we're going to see a couple of thousand more
Speaker 1: bringing new suits, in a couple of thousand more bringing
Speaker 1: new suits. So the whole ballgame for the last year
Speaker 1: has been trying to get everybody's arms around the entire
Speaker 1: scope of liability. And that's not just these twenty eight
Speaker 1: hundred cases. It's every possible case that might come after
Speaker 1: that is always in the mind of the parties that
Speaker 1: are trying to settle. That has been the challenge from
Speaker 1: the beginning of how to effectively get global peace, even
Speaker 1: though only a small fraction of the local governments are
Speaker 1: actually currently in the case. So lay it out for us,
Speaker 1: what are the possible avenues to get what a lawyer
Speaker 1: would call global peace and what a company would call
Speaker 1: Please nobody sue us anymore. You know, we've paid off
Speaker 1: all the money we have to pay out, So what
Speaker 1: are the possible paths to getting to the end of
Speaker 1: all of this, So I have to give you a
Speaker 1: little more background on the political landscape. So, as you know,
Speaker 1: we have state courts in this country and we have
Speaker 1: federal courts in this country, and neither has control over
Speaker 1: what happens in the other side. So on the federal side,
Speaker 1: we have several different mechanisms that allow course to aggregate
Speaker 1: litigation when loss of similar cases are filed to try
Speaker 1: to get to a global resolution. One of those class actions.
Speaker 1: In the context of the opioid litigation, class actions have
Speaker 1: not been viewed as the answer because the Supreme Court
Speaker 1: has made it very difficult to bring class actions when
Speaker 1: it comes to cases that involve health. The Supreme Court
Speaker 1: requires a lot of commonality in certifying a class and
Speaker 1: it's very hard to prove that people are harmed in
Speaker 1: the same way when it comes to health cases. To
Speaker 1: everybody is of the position that you're not gonna be
Speaker 1: able to get your arms around the complete scope of
Speaker 1: litigation just by using a class action. So what are
Speaker 1: the other federal solutions available before we get to this
Speaker 1: question of states? So when class actions are not available,
Speaker 1: a different mechanism has kind of stepped into the breach
Speaker 1: to address the problem of mass aggregation, and that's called
Speaker 1: the multidistrict litigation. It's a comes from a federal statue
Speaker 1: twenty eight USC. Fourteen oh seven that was passed about
Speaker 1: fifty years ago to deal with a very different problem
Speaker 1: of utility litigation. In the last couple decades, multi district
Speaker 1: litigation has been resorted to when class actions are not available,
Speaker 1: and the way it works is that it allows the
Speaker 1: consolidation and a single federal core room for pre trial
Speaker 1: resolution of similarly situated claims filed across the country. The
Speaker 1: key is that it's free trial resolution. A class action
Speaker 1: goes to the ultimate trial, the ultimate settlement, but with
Speaker 1: the multidistrict litigation, the idea is that the judge winners
Speaker 1: the claims, tries to streamline things, takes care of discovery
Speaker 1: in a consolidative fashion, and then sends everybody home to
Speaker 1: try the cases on their own jurisdictions. But the fact
Speaker 1: of the matter is that virtually never happens. The very
Speaker 1: fact that big cases are consolidated into an MDL in
Speaker 1: the first place generally signals that everybody thinks a trial
Speaker 1: or individual trials are unrealistic, and the goal of the
Speaker 1: MDL generally is to efficiently settle the cases. That has
Speaker 1: certainly been what's been happening in the opoid litigation. In
Speaker 1: this litigation, about a year ago, about two thousand of
Speaker 1: these cases were consolidated into a single federal courtroom in
Speaker 1: Cleveland for a judge named Dan Polster. That judge said
Speaker 1: in his very first opening statement in the case that
Speaker 1: he was not interested in bringing these cases to trial.
Speaker 1: He thought he was dealing with a massive, ongoing public
Speaker 1: health crisis, and he made clear his goal was to
Speaker 1: settle and to settle quickly. Now, that would be enough
Speaker 1: of a challenge, but you've then got the whole state
Speaker 1: legal landscape. There are several hundred, about four to five
Speaker 1: hundred state cases that have been filed by state attorneys
Speaker 1: general and other plaintiffs, including some localities, some cities and
Speaker 1: counties in their state courts, and the federal court has
Speaker 1: no power, no jurisdiction over those four to five hundred
Speaker 1: state cases. So even if you could get a settlement
Speaker 1: in the MDL in Cleveland in that big case, you're
Speaker 1: not going to have a global settlement because they're still
Speaker 1: going to be several hundred cases left out in the
Speaker 1: state court system. So you're in Cleveland, you're a defendant.
Speaker 1: You're trying to settle these claims. You want to get
Speaker 1: global peace without the class action. The parties in Cleveland
Speaker 1: had to get very creative over the summer. By most account,
Speaker 1: it appears that they put their heads together and effectively
Speaker 1: innovated a brand new form of civil procedure. They have
Speaker 1: suggested that there should be something called a negotiation class
Speaker 1: it's inspired by a class action, and the idea is
Speaker 1: that they're making the argument that the localities in the
Speaker 1: MDL are sufficiently representative of those in the rest of
Speaker 1: the country that notice is given to all of the
Speaker 1: localities across the country. These localities can negotiate on behalf
Speaker 1: of everybody else and settle these cases on behalf of
Speaker 1: all relevant counties, even the ones that are not yet
Speaker 1: in this litigation. Now, that's that's fascinating. This is very
Speaker 1: very important. And I want to pause here because you know,
Speaker 1: from the lawyer's standpoint, everything you're saying crackles off the page.
Speaker 1: But I want us to be clear for non lawyers
Speaker 1: who might be listening. If you're still listening and hot lawyers,
Speaker 1: please don't please don't turn the dial what is going
Speaker 1: on here? And here's what I think would be a
Speaker 1: useful piece of background. I think if you don't go
Speaker 1: to law school, you hear the words class action, you
Speaker 1: think that's something that plaintiffs want. You think that it's
Speaker 1: people who are doing the suing who like the idea
Speaker 1: of a class action because they can combine together the
Speaker 1: claims of lots of different people and get a lot
Speaker 1: of money instead of a little bit of money. But
Speaker 1: once you enter the incredibly arcane and complex world of
Speaker 1: class actions, you discover is there are also lots of
Speaker 1: circumstances where the defendants, the ones who have done the
Speaker 1: harm and are being sued, love class actions because what
Speaker 1: they want is for the case to be over. They
Speaker 1: want to turn around and say to their shareholders, We've
Speaker 1: done everything we're gonna have to do, We've paid out
Speaker 1: our last nickel, and now we can get on with
Speaker 1: the business of being a company again without having these big,
Speaker 1: overhanging potential civil liabilities. So, in the absence of the
Speaker 1: opportunity for a class action, the defendants and correct me
Speaker 1: if I'm going wrong, you're abbey, really are trying to
Speaker 1: find some way to be sure that it's all over
Speaker 1: that they won't settle with one group of people and
Speaker 1: then have another group of people appear and say, hey,
Speaker 1: guess what now, we're suing you. And it sounds, from
Speaker 1: what you're saying, like they're trying to invent, on the
Speaker 1: fly some new legal technology they will allow them to
Speaker 1: be sure after they've settled cases that there won't be
Speaker 1: new cases arising. Am I getting that right? Yeah? I
Speaker 1: think that's right. I would ammendous slightly. I think it
Speaker 1: was a very long thought out process that was over
Speaker 1: the summer, so not on the fly, but also not
Speaker 1: novel to the MDL. So multidistrict litigation because it is
Speaker 1: this wild West form of sevil procedure that stepped into
Speaker 1: the breach to solve a problem that it wasn't really
Speaker 1: designed to is known for innovating new procedural mechanisms. This
Speaker 1: is definitely that on steroids, probably the most extreme version
Speaker 1: of creative procedural innovation that we've seen in MDL. But
Speaker 1: it's not unprecedented in the sense that that's what mdls do.
Speaker 1: That's why some people love them, if why some people
Speaker 1: think they're lawless. But yes, the party's got together and
Speaker 1: they said we need a way to get global peace.
Speaker 1: We need a way to basically settle this case on
Speaker 1: behalf of the entire country, even though only US slice
Speaker 1: of local governments are actually in the case so far.
Speaker 1: We need a way for it to look fair. So
Speaker 1: we are going to create something that looks like a
Speaker 1: class action, even though we can't have a class action.
Speaker 1: We're going to send notice to thirty thousand local governments
Speaker 1: over the next two to tell them we're going to
Speaker 1: negotiate on your behalf unless you opt out, and once
Speaker 1: they opt in, we're going to settle the case and
Speaker 1: hold everybody to that. Now, if that seems wild, it is.
Speaker 1: But remember in a regular class section, that's also what happens.
Speaker 1: Once you put notice out and certify the class, you
Speaker 1: can resolve a case on behalf of all of those parties,
Speaker 1: the ones in the courtroom and the ones who aren't
Speaker 1: in the courtroom. That's what they're trying to do. So
Speaker 1: will it work? I think? I think the big danger
Speaker 1: doubt it's going to be tied up in litigation for
Speaker 1: a very long time. So I would not be surprised
Speaker 1: if this question. Can there be such a thing as
Speaker 1: a negotiation class makes it up to the Supreme Court.
Speaker 1: The reason it wouldn't is that most of the parties
Speaker 1: in these cases like it. Right, the defendant and the
Speaker 1: plaintiffs want such a resolution. The state attorneys general have
Speaker 1: been the ones that are the most opposed thus far.
Speaker 1: They don't like it because it gives their local governments
Speaker 1: a mechanism to settle these cases, even perhaps before the
Speaker 1: state ags can get their own ettlement. So if we
Speaker 1: see these cases going up, it's going to be I
Speaker 1: think large part pushed by the state attorney's general trying
Speaker 1: to get some opposition to these cases in front of
Speaker 1: the Supreme Court. The other issue is that you have
Speaker 1: to have a settlement number for a negotiation class to work.
Speaker 1: We need two pieces. We need this new form of
Speaker 1: civil procedure to be upheld, and then we need to
Speaker 1: get to a settlement in the second place. Can I
Speaker 1: ask this is obviously a very ballpark question, As you
Speaker 1: point out, negotiations can break down at any moment. But
Speaker 1: what's the order of magnitude that a settlement would take?
Speaker 1: How many billions of dollars are we actually talking about?
Speaker 1: So I don't think anybody really knows the complaints that
Speaker 1: were filed in these cases did not ask for any
Speaker 1: specific numbers, so we're talking. You know, it would be
Speaker 1: surprising if the number was less than fifty billion, and
Speaker 1: most likely in the end it'll be something higher than that.
Speaker 1: But again, it's risk, it a hazard, a guess. So
Speaker 1: when that money, if when? And if obviously it's a
Speaker 1: big if. If there is some kind of a settlement
Speaker 1: going from the companies that manufactured the opioids to cities, towns,
Speaker 1: and states, what in the real world is likely actually
Speaker 1: to happen to that money? I mean, some of it
Speaker 1: obviously will go into general budget in places that have
Speaker 1: overspent their existing budgets trying to deal with the fall
Speaker 1: out of the opioid crisis. But will there be any
Speaker 1: prevention element there? Is it all going to be just
Speaker 1: to play catch up against past damages. In the real world,
Speaker 1: what will all that money meet? Well, I think your
Speaker 1: assumption that some of that money is going to go
Speaker 1: into the state general treasury may not ultimately prove to
Speaker 1: be the case. That turned out to be one of
Speaker 1: the most controversial outcomes of the tobacco litigation that the
Speaker 1: money went to state general treasuries and wasn't specifically directed
Speaker 1: toward abatement or prevention. And that's what a lot of
Speaker 1: the plaintiffs in these cases are trying to avoid. There's
Speaker 1: going to be a fight again internal to each date
Speaker 1: about how this money is spent and who controls it.
Speaker 1: In Oklahoma, over the summer, they were supposed to be
Speaker 1: a trial against a bunch of companies. Some of the
Speaker 1: companies settled and the very first settlement, Perdue Pharma, settled
Speaker 1: with the state of Oklahoma and the money was sent
Speaker 1: to a university precisely so that it would not go
Speaker 1: into the state general treasury. The Oklahoma legislature got very upset,
Speaker 1: where's a huge ruckus. So the next settlement that came around,
Speaker 1: which was Tava the generic manufacturer, that money did go
Speaker 1: to the Oklahoma treasury. So that's a great example of
Speaker 1: the kind of fights you're going to see as the
Speaker 1: settlement numbers come out. And that's because politicians or politicians,
Speaker 1: and when money is on the table, each one of
Speaker 1: them is going to want it for their relevant constituency. Yeah,
Speaker 1: it also happens to be the case that when state
Speaker 1: attorneys generals sue the way their recovery funds work, the
Speaker 1: money isn't always directly sent to the target of the
Speaker 1: lawsuits in the first place. Theories that were harmed there
Speaker 1: often go to the general fund. That was what happened
Speaker 1: with Echo. In the case of a public health crisis,
Speaker 1: where there are some counties within a state that have
Speaker 1: been hurting more than other counties and different kinds of harms,
Speaker 1: prevention and treatment are not the same kind of harms,
Speaker 1: money has to go to different places to deal with
Speaker 1: prevention and treatment. It's complicated, and a good use of
Speaker 1: the funds would think through the various causes of the crisis,
Speaker 1: the various ways in which the counties are hurting, and
Speaker 1: trying to make sure those funds are directed in some way.
Speaker 1: What I'm hearing is not optimism from you. I mean,
Speaker 1: I'm not hearing from you either that there's great optimism
Speaker 1: that this will all be solved soon, or that the
Speaker 1: large sum of money that's going to eventually change hands
Speaker 1: is necessarily going to be used in ways that are
Speaker 1: actually in the real world effective. So my first question is,
Speaker 1: on this point, am I right that I'm not hearing
Speaker 1: a lot of optimism. I mean, I think if your
Speaker 1: abbey is a very optimistic person, you want you like
Speaker 1: to solve things and make them work better. But you
Speaker 1: don't sound so optimistic this time. Now. I think you're
Speaker 1: overreading my pessimism, so it's more of a realism. I'm
Speaker 1: optimistic that there's going to be a settlement. I am
Speaker 1: less certain that the money is going to be dispersed
Speaker 1: in ways that are actually targeted to the problem. I'm
Speaker 1: encouraged by some states efforts to start drafting legislation in
Speaker 1: preparation for the receipt of these funds to say when
Speaker 1: money comes in, it has to go to X, Y
Speaker 1: and Z. I think that would be helpful. I also
Speaker 1: think that we have a judge in Cleveland who has
Speaker 1: not been afraid to get his hands in this to
Speaker 1: this and he does not seem to be running out
Speaker 1: the door right So I think when we get a
Speaker 1: settlement from him and an idea world, the settlement is
Speaker 1: going to be structured, is going to say where the
Speaker 1: money is going to go, and Judge Polster is going
Speaker 1: to watch it. But I am less optimistic that money
Speaker 1: is going to solve a public health crisis. I don't
Speaker 1: think any health expert thinks that money can abate a
Speaker 1: public health crisis. Money can help cities put money back
Speaker 1: in their coffers when they've already paid for a health
Speaker 1: public health crisis. But we have fourteen states that haven't
Speaker 1: expanded Medicaid. That's a huge portion of the population that
Speaker 1: has no access to healthcare because they don't have insurance.
Speaker 1: That would do a heck of a lot to help
Speaker 1: the public health crisis. That's a legal solution that has
Speaker 1: nothing to do what's going on in the courtroom. We
Speaker 1: also have some very antiquated federal laws on the books
Speaker 1: that make it extremely difficult for doctors to treat opioid
Speaker 1: use disorder and addiction. It requires you to go to
Speaker 1: a separate location, not your doctor's office, to get methadone.
Speaker 1: That's a barrier, and it actually limits the number of
Speaker 1: patients any one doctor can treat for opioid addiction with
Speaker 1: another drug boot for norphine at a time. We don't
Speaker 1: regulate any other kind of treatment this way. It's any
Speaker 1: Joe Schmo can prescribe an opioid, and when people get addicted,
Speaker 1: it's very hard to treat them. And those are legal problems,
Speaker 1: those are system problems, and none of that is going
Speaker 1: to be solved by this litigation. Does any other country
Speaker 1: on Earth think that litigation is even part of the
Speaker 1: way you should go about addressing crises like these, or
Speaker 1: is this a craziness that is distinctively American? You know,
Speaker 1: to my knowledgist is a uniquely American phenomena. But that
Speaker 1: is the backbone of our litigation system. You know, we
Speaker 1: use our litigation system and the adversary system to hold
Speaker 1: the government accountable, to hold parties an accountable pro and con.
Speaker 1: But we are unique in this regard. A lot of
Speaker 1: countries look on us, I think with an eyebrow raised.
Speaker 1: I mean, I think it might have to be more
Speaker 1: than an eyebrows as we walk into this crisis, do
Speaker 1: you have any faith that when there is some other
Speaker 1: similar crisis, the next public health crisis generated by big
Speaker 1: companies of some kind or another, that they would take
Speaker 1: a deep breath before trying to make a lot of
Speaker 1: money on a product like tobacco or like opioids, thinking
Speaker 1: somewhere down the road, we're going to have to pay
Speaker 1: a very high price. Or do you think that rational?
Speaker 1: You know, money maximizing corporate actors in the future would say,
Speaker 1: you know what, it's always a question of rolling the dice.
Speaker 1: Here in the United States, and we always know we
Speaker 1: could get sued whether we did anything bad or not.
Speaker 1: So let's just try to make as much money as
Speaker 1: we can and if we're sued, eventually we'll deal with
Speaker 1: that problem, will be come to it. Because if that's
Speaker 1: the case, then I feel as though we're in a
Speaker 1: kind of repetition compulsion that we just we do the
Speaker 1: same thing again and again and again, and as you say,
Speaker 1: we use the money to abate it, but we don't
Speaker 1: really solve it, you know. I think that that question
Speaker 1: overlooks key factors about both the tobacco cases and the
Speaker 1: opioid cases, and that is that this is not just
Speaker 1: a case of a successful drug that had unforeseen side
Speaker 1: effects that addicted a lot of people and caused a
Speaker 1: lot of health problems. This, at least according to the allegations,
Speaker 1: is like tobacco, is a case in which companies had
Speaker 1: a drug, they knew the drug had addictive and harmful properties,
Speaker 1: and covered that up and then made money off of it.
Speaker 1: So it's not just litigation that is a deterrent, it's
Speaker 1: sort of honest services in corporate dealing that should be
Speaker 1: a deterrent for this. So I don't think you're going
Speaker 1: to stop American capitalist. I'm trying to maximize the office
Speaker 1: from a successful drug that remember, has valid medical uses,
Speaker 1: is approved by the FDA, is necessary for many kinds
Speaker 1: of surgeries and for people dying with cancer. So you know,
Speaker 1: a company, arguably shouldn't you be deterred from producing those
Speaker 1: kinds of drugs because they're helpful to society. But what
Speaker 1: this litigation should hopefully deter companies from doing is a lying,
Speaker 1: covering up, committing arguable acts of fraud on the public
Speaker 1: to get people hooked on drugs that they're representing is
Speaker 1: not addictive. Now, we haven't had a trial, those claims
Speaker 1: haven't improved, but those are the allegations that are being made.
Speaker 1: Those are the kinds of things that we're particularly damaging
Speaker 1: to Johnson and Johnson when they went on trial in
Speaker 1: Ohio and Oklahoma and some public documents came out. I
Speaker 1: think that's why we're seeing this move towards settlement. These
Speaker 1: companies don't want to go on trial. They don't want
Speaker 1: to incur the kind of reputational harm that would come
Speaker 1: from not from trying to maximize profits, but from covering
Speaker 1: up harmful aspects of a drug. That they're aggressively marketing
Speaker 1: and not telling anybody about I think that's a deterrent.
Speaker 1: I hope that's the deterrent, and we'll have to see
Speaker 1: if the numbers are big enough to make that happen.
Speaker 1: Is that enough of a deterrent though, I mean, I mean,
Speaker 1: if you know that when push comes to shove you
Speaker 1: can settle rather than take the embarrassment. Sure it's going
Speaker 1: to cost you some money down the road, but it
Speaker 1: doesn't seem like a very powerful deterrent to lying. I mean,
Speaker 1: you know, if people working for companies have actually lied
Speaker 1: and covered up very dangerous consequences of their products, shouldn't
Speaker 1: we be talking more in terms of criminal sanctions. There
Speaker 1: are of criminal cases that have been filed, so I
Speaker 1: do think that's part of the agin. It's a vague
Speaker 1: part of the puzzle, right, So we have seen a
Speaker 1: bunch of criminal cases. We also are seeing companies going
Speaker 1: out of business over this perdue, farmers going to go
Speaker 1: out of business over this right. So if that's not
Speaker 1: enough of a deterrent, then we need sort of a
Speaker 1: wholesale revamping of our of our legal system. But hopefully
Speaker 1: criminal charges, reputational damage and the potential for going out
Speaker 1: of business should be enough to get companies sacked. Last question, Abby,
Speaker 1: So all of what we've been talking about is about
Speaker 1: trying to hold the pharma company is liable for what
Speaker 1: they've done. Is there something that the rest of us
Speaker 1: consumers should be doing now we're or in the future
Speaker 1: to think about what we might do to try to
Speaker 1: avoid crises like this arising in the future. Or is
Speaker 1: it really just a question of tweaking the system, making
Speaker 1: it work properly, and creating the right incentives so that
Speaker 1: companies that obviously have much more information about the content
Speaker 1: of what they're making and the effects of their products
Speaker 1: than we do can be held responsible. Well, I think
Speaker 1: you have to understand that the opoid crisis was not
Speaker 1: caused by people with back pain taking too many drugs. Right.
Speaker 1: The drugs were put into the market through the FDA
Speaker 1: through medical practice. People did become addicted to them, but
Speaker 1: then they were diverted to recreational use. That recreational market
Speaker 1: picked up significantly. People saw an opportunity. Cheap synthetic versions
Speaker 1: of that drug were then brought in just like other
Speaker 1: drugs like heroin. Right, it's not that different, And so
Speaker 1: I think that where we are right now, in this
Speaker 1: phase of the crisis, it's not a consumer issue anymore.
Speaker 1: It started out as a consumer issue, it has become
Speaker 1: a recreational, street level drug use issue that is of
Speaker 1: a different nature, and so it can't possibly be averted
Speaker 1: by consumers anymore. Consumers can ask doctors questions, consumers can
Speaker 1: try to recognize symptoms of addiction and not be embarrassed
Speaker 1: to go to their doctor and talk about addiction. But
Speaker 1: the crisis got far bigger than doctor's offices. You know,
Speaker 1: a number of years ago, there was an early wave
Speaker 1: of prosecutions what we're called so called pill mills doctors
Speaker 1: that were distributing too many drugs. Where we are now
Speaker 1: is far beyond that. You don't hear about pill mill kings.
Speaker 1: We're hearing about major drug trafficking, worring about people dying
Speaker 1: from a single dose of a drug that looks like
Speaker 1: an opioid but is laced with a synthetic version of
Speaker 1: it that is so dangerous that it can kill a
Speaker 1: teenager with one drug. It's a very different problem than
Speaker 1: just a consumer drug problem. I mean, thank you so
Speaker 1: much for analyzing this, for clarifying it, and for showing us,
Speaker 1: in fact just how hard it is to get a
Speaker 1: solution here, but also for providing some optimism about how
Speaker 1: we're going to work our way through it going forward.
Speaker 1: Thank you very much for your time. Yeah, I hope so,
Speaker 1: thanks so much. Noah. Now for our sound of the week,
Speaker 1: or really two sounds. First, this familiar voice, mister gerbaschof
Speaker 1: teared down this wall. And then just two years later
Speaker 1: this happened. That was the sound of celebration, almost exactly
Speaker 1: thirty years ago, when the Berlin Wall in fact was
Speaker 1: breached and people began to be able to move freely
Speaker 1: back and forth between West and East Berlin. This thirtieth
Speaker 1: anniversary is really, in a sense, the anniversary of the
Speaker 1: end of the Cold War, and it raises a fascinating question.
Speaker 1: Who won. To listen to Ronald Reagan tell it, it
Speaker 1: was the West that won, with its distinctive combination of
Speaker 1: free market economies and liberal democracy. And that's the narrative
Speaker 1: that cut on in much of the world in the
Speaker 1: aftermath of the Cold War. It's certainly the narrative that
Speaker 1: cut on in the West. Decide the thought of itself
Speaker 1: as having won a victory today, it's not so obvious
Speaker 1: who won the Cold War, it is still pretty clear
Speaker 1: that communism as an economic system did lose to capitalism.
Speaker 1: After all, in the direct aftermath of the fall of
Speaker 1: Berlin Wall, the entire Soviet Bloc gave up on communist
Speaker 1: economic organization and headed in the direction of a market economy. Meanwhile,
Speaker 1: in the same years, the government of China, though in
Speaker 1: theory remaining communist, adopted what is essentially a capitalist version
Speaker 1: of state owned business. It's still not Western free market capitalism,
Speaker 1: but it's a distinctive form of Chinese capitalism that the
Speaker 1: Chinese call socialism with Chinese characteristics. That only makes sense
Speaker 1: if you realize that the Chinese characteristics are that it's
Speaker 1: not really socialism. And the consequence of that grand transition
Speaker 1: of formerly communist economies into capitalist economies has been nothing
Speaker 1: short of amazing. China rose to become the number two
Speaker 1: economy in the world, and it's on track eventually to
Speaker 1: exceed the economy of the United States. That was a
Speaker 1: direct objective proof of what could happen when you just
Speaker 1: took away the structure of commun economic organization. No one
Speaker 1: today is a serious communist from an economic standpoint, even
Speaker 1: holdouts like Cuba and North Korea are gradually investing in
Speaker 1: the process of marketizing or in other words, capitalizing their economies.
Speaker 1: Yet the idea that liberal democracy had won a victory
Speaker 1: over unfree forms of authoritarian government looks increasingly doubtful in
Speaker 1: the light of events of recent years. China, the same
Speaker 1: country that adopted capitalism, made no steps whatsoever in the
Speaker 1: direction of liberalizing politics in its country, and no steps
Speaker 1: in the direction of becoming more democratic, despite its authoritarian
Speaker 1: system of government that is in fact only gotten more
Speaker 1: authoritarian in the era of Shijinping. China's economic growth has
Speaker 1: continued partly the influence of this Chinese model. Countries around
Speaker 1: the world that we're experimenting with liberal democracy in the
Speaker 1: aftermath of the Cold War have begun to back away
Speaker 1: from that model. You can think of this in the
Speaker 1: case of countries like Hungry or Turkey that had democracy,
Speaker 1: had elections and then elected strong man leaders, or slowly
Speaker 1: but surely ironing the basic democratic freedoms that we associate
Speaker 1: with liberal government. If you're a country that's today trying
Speaker 1: to figure out how to reform yourself, it's obvious that
Speaker 1: you had head in the direction of greater capitalism, but
Speaker 1: it's not at all obvious that you had head in
Speaker 1: the direction of greater political freedom. And indeed, the rise
Speaker 1: of populism has even undercut liberal democratic institutions in countries
Speaker 1: that we think of as lying in the heartland of
Speaker 1: traditional democracy, countries like the United States in the Donald
Speaker 1: Trump administration, and even countries like Britain, which is, of
Speaker 1: course the original home of modern liberal democracy. What should
Speaker 1: we make of the fact the capitalism is doing great
Speaker 1: but liberal democracy is in a certain amount of trouble.
Speaker 1: The first lesson I think we should take away from
Speaker 1: that is that history takes a long time to play
Speaker 1: itself out. In the Euphoria thirty years ago, after the
Speaker 1: fall of the Berlin Wall, it was easy to imagine
Speaker 1: that every aspect of the West had defeated every aspect
Speaker 1: of communism, and in retrospect it's pretty clear that that
Speaker 1: just wasn't so. The second takeaway is that liberal democracies
Speaker 1: can no longer rest on their laurels and say that
Speaker 1: the reason liberal democracy is a good form of government
Speaker 1: is that it will help you defeat your enemies by
Speaker 1: making your country the richest and strongest country that it
Speaker 1: can possibly be. That argument sounded pretty good in the
Speaker 1: aftermath of the Cold War. That argument sounds terrible today.
Speaker 1: In its place, liberal democracies have to come up with
Speaker 1: a different argument, one that says that democracy is good
Speaker 1: on its own terms. That the reason we should have
Speaker 1: voting is that every human being is genuinely entitled to
Speaker 1: a say that the reason that we have liberal rights
Speaker 1: is that each human being is entitled to be protected
Speaker 1: in his or her fundamental dignity. That the reason we
Speaker 1: have freedom of expression is that part of the human
Speaker 1: experience that makes it worth being alive is the chance
Speaker 1: to express your views and try to influence others. The
Speaker 1: upshot is that democracy cannot say any longer be a
Speaker 1: democrat and win your wars. It must say be a democrat,
Speaker 1: because democracy is inherently valuable, even if it doesn't always
Speaker 1: make your country the most powerful one on the block.
Speaker 1: Deep Background is brought to you by Pushkin Industries. Our
Speaker 1: producer is Lydia Genecott, with engineering by Jason Gambrel and
Speaker 1: Jason Rostkowski. Our showrunner is Sophie mckibbon. Our theme music
Speaker 1: is composed by Luis GERA special thanks to the Pushkin
Speaker 1: Brass Malcolm Gladwell, Jacob Weisberg, and mi A Lobel. I'm
Speaker 1: Noah Feldman. You can follow me on Twitter at Noah
Speaker 1: R Feldman. This is deep background