Speaker 1: You're listening to Bloomberg Law with June Grasso from Bloomberg Radio.
Speaker 1: It was an extraordinary breach and a seismic shock hit
Speaker 1: the Supreme Court on Monday when political published a draft
Speaker 1: opinion overturning the seventy three landmark case of Roe v. Wade.
Speaker 1: In the draft by Justice Samuel Alito, five Justice is
Speaker 1: voted to overturn the constitutional right to abortion, which has
Speaker 1: been guaranteed for nearly half a century. Joining me is
Speaker 1: U C. L. A. Lawn Professor Adam Winkler. Generally, the
Speaker 1: Supreme Court has been considered just about leak proof. How
Speaker 1: surprised were you? Well, I was quite surprised, because while
Speaker 1: there have been a very very rarely leaks of appending
Speaker 1: outcome in a Supreme Court case, I can recall no
Speaker 1: case where we've seen a leak majority opinion in full
Speaker 1: laying out the courts reasoning and rationale and details of
Speaker 1: the vision. So that is even among the instances of
Speaker 1: previous leaks, historically unprecedented. Describe the process of the conferencing
Speaker 1: and the circulation of drafts, Well, that's right. This majority
Speaker 1: opinion is really only a draft majority opinion, and it
Speaker 1: may not be the final decision that comes out of
Speaker 1: the Supreme Court. The way the Supreme Court works is
Speaker 1: the Court here's oral argument, and then a few days
Speaker 1: later meets in what they call the conference. And the
Speaker 1: conference involves only the justices. No clerks or secretaries or
Speaker 1: assistance are allowed in the room, and they go around
Speaker 1: and vote on the cases and hash out how the
Speaker 1: reasoning is going to go. Those votes that the Court
Speaker 1: cast in the conference set a majority and sometimes a
Speaker 1: minority perspective on the court, and the two sides will
Speaker 1: go off writing their opinions. But those votes that are
Speaker 1: cast but the conference are not considered final votes. And
Speaker 1: there have been instances in the past where justices have
Speaker 1: changed their votes after the conference, including in planned Parenthood
Speaker 1: be casey, one of the important cases court here purports
Speaker 1: to overturn. Chief Justice John Roberts came out with a
Speaker 1: statement saying that this is not going to affect how
Speaker 1: the Court operates. But I wonder how this might in
Speaker 1: fact affect the justices at their conferences and in circulating
Speaker 1: future drafts. If they're concerned that there could be a leak. Well,
Speaker 1: I imagine it could have some effect. You might imagine,
Speaker 1: for instance, the Court adopting a system where every draft
Speaker 1: opinion has a watermark of some sort or a distinguishing feature,
Speaker 1: so that if a PDF file comes out like in
Speaker 1: this case, it can be traced back to the recipient
Speaker 1: of that draft. However, I also think that more importantly
Speaker 1: than the leaking of the opinion, it's the opinion itself
Speaker 1: is going to cause a lot of disharmony on the
Speaker 1: Supreme Court, and we're likely to see the two sides
Speaker 1: of the Supreme Court very very starkly divided in coming
Speaker 1: years and very bitter over the Court's overturning of Grow
Speaker 1: versus Way. Let's talk about what Justice Slido wrote in
Speaker 1: his opinion. He wrote that Row was egregiously wrong from
Speaker 1: the start. Explain his reasoning well. His argument is is
Speaker 1: that Row is an unwritten right under the Constitution, and
Speaker 1: that the way that we define which unwritten rights are
Speaker 1: protected by the Constitution simply doesn't support the holding of
Speaker 1: Row versus Wade. Alito says, the way we do that
Speaker 1: is we look to history and tradition. Those rights that
Speaker 1: are deeply rooted in history and tradition are protected by
Speaker 1: the Fourteenth Amendments to Process Clause and he says the
Speaker 1: right to abortion is not deeply rooted in history and tradition.
Speaker 1: Uh And indeed, many people have criticized Row versus Wade
Speaker 1: over the years for not offering a particularly vibrant and
Speaker 1: robust argument for why the right to choose abortion was
Speaker 1: protected by the Constitution. He wrote, far from bringing about
Speaker 1: a national settlement of the abortion issue, Row and Casey
Speaker 1: have inflamed debate and deepen division. That seems to me
Speaker 1: like it's a political argument. Well, there is a certain
Speaker 1: paradox in Alito's opinion. He says that the Court needs
Speaker 1: to rule on the basis of law without regard to
Speaker 1: any of the political consequences or political opinions Americans. And
Speaker 1: yet this very idea pops up in the reasoning of
Speaker 1: the Court that his majority opinion says that Row hasn't
Speaker 1: settled things, and because it hasn't settled things, that becomes
Speaker 1: a reason for overturning it. What that suggests is that
Speaker 1: people who are opposed to a constitutional ruling of the
Speaker 1: Supreme Court just need to agitate hard enough to make
Speaker 1: that a continuing and current controversy, and if so, then
Speaker 1: they will have unsettled the precedent and made it so
Speaker 1: the precedent doesn't survive. Let's talk about Alito's tone in
Speaker 1: writing this, which is very caustic and very critical of
Speaker 1: the Supreme Court author of row Well, I think that's right,
Speaker 1: and he is very caustic. And Alito's opinions have been
Speaker 1: very caustic for many years, and indeed his questions at
Speaker 1: oral argument often play the same way. One thing that
Speaker 1: seems to run through Alita's opinion is a lack of
Speaker 1: any understanding of how anyone could come up with a
Speaker 1: different argument or a different perspective on the underlying right,
Speaker 1: and I think that's one of the real weaknesses of
Speaker 1: this opinion. Many people have criticized some of the d
Speaker 1: process privacy opinions that were written by Justice Anthony Kennedy,
Speaker 1: such as Oberga Fowl and Lawrence recognizing same sex marriage
Speaker 1: and same sex intimacy as fundamental rights respectively. But one
Speaker 1: thing Anthony Kennedy was always very careful to do was
Speaker 1: to try to show respect for the other side and
Speaker 1: for people who had differings, and made specific efforts in
Speaker 1: his opinion to call those people into his opinion and
Speaker 1: to support his arguments rather than sneering at them as
Speaker 1: being totally lacking in merit and any serious constitutional Adam
Speaker 1: Alito writes that we've long recognized, however, that starry decisive
Speaker 1: is not an inexorable command, and he's got a list
Speaker 1: of cases. What does that do to the view of
Speaker 1: the Court as being, you know, an institution that follows precedent,
Speaker 1: even though on occasion we've seen that they don't follow precedent.
Speaker 1: But this is a precedent that the little girls were
Speaker 1: born with, this precedent, and now it's just being taken
Speaker 1: away from them. This right, Well, that's right, And I
Speaker 1: do think that U the Court's treatment of precedent just
Speaker 1: highlights that the Roberts Court in particular is not that
Speaker 1: interesting precedent and has been overturning precedents pretty much left
Speaker 1: and right, often just using the shadow dockets so that
Speaker 1: they don't even have to offer precise and concise opinion
Speaker 1: and reasoning explaining the decision. So we have seen that
Speaker 1: precedents are being overturned at an increasingly rapid rate in
Speaker 1: the new Roberts Court, especially after the addition of three
Speaker 1: new justices under as a Trump justice is Gorsch, Kavanaugh
Speaker 1: and Barrett and I think this case is a wake
Speaker 1: up call for those who think that Supreme Court nominees
Speaker 1: who go to the Senate and tell Susan Collins, as
Speaker 1: Brett Kavanaugh did, that rovers weight is the settled law
Speaker 1: of the land, don't really mean anything by it. That
Speaker 1: precedent doesn't really mean anything to the justices of the
Speaker 1: Supreme Court. Well, Elito himself described it as precedent of
Speaker 1: his own confirmation hearings. Leaks happen in Congress, leaks happen
Speaker 1: in the White House, not usually in the Supreme Court.
Speaker 1: How does this affect the Court's legitimacy? Does it reinforce
Speaker 1: the idea that it's become a more political institution. I'm
Speaker 1: not sure what effect the League will have on the
Speaker 1: perception of legitimacy of the Supreme Court. I think more
Speaker 1: disastrous to the legitimacy of the Supreme Court in the
Speaker 1: eyes of many in the public is overturning rovers His
Speaker 1: way is the substance of the underlying decision that was
Speaker 1: released in draft form. If this decision holds, I think
Speaker 1: that many many people will lose faith in the Supreme
Speaker 1: Court in a way that the Screen Court hasn't seen
Speaker 1: in many, many decades, and I would expect that a
Speaker 1: lot of people who used to say, well, yeah, they
Speaker 1: talk about overturning rovers as way, but they'll never really
Speaker 1: do it, will now have to be would be forced
Speaker 1: to really reconsider their approach to politics and who they
Speaker 1: want to vote for, and how important issues of choice
Speaker 1: really are to their sense of liberty and democracy. I've
Speaker 1: heard two different viewpoints, one being that the revelation of
Speaker 1: this draft opinion could lead the majority to dig in
Speaker 1: and stick to the opinion. The other side is that, well,
Speaker 1: it could lead some of the justices to rethink the
Speaker 1: opinion and perhaps go to the middle ground that the
Speaker 1: Chief Justice reportedly has been interested in. What do you
Speaker 1: think It's so hard to know, June. You know, we
Speaker 1: just don't have any information on leaked it and what
Speaker 1: the possible reasons are for leaking it. One could imagine
Speaker 1: an argument that this was leaked by conservatives who are
Speaker 1: looking to shore up Aldo's opinion and stop someone like
Speaker 1: a Kavanaugh from wavering and signing onto a more moderate decision.
Speaker 1: Others have speculated that it's probably someone on the left,
Speaker 1: left leaning clerk who's so outraged and shocked that that
Speaker 1: persone wants to let the world know what's coming in
Speaker 1: Supreme Court and how outrageous this opinion really is in
Speaker 1: light of constitutional law. I think those are really the
Speaker 1: key things, and among lawyers, I think that Alito's draft opinion,
Speaker 1: if it becomes the majority opinion, will not gain the
Speaker 1: respect of the legal community. At critical points in the argument,
Speaker 1: Aledo abandoned legal analysis for really pure policy preference. And
Speaker 1: I don't think that the argument that Alito makes will
Speaker 1: be received with any more compliments than Justice Blackman's original
Speaker 1: decision and Grow versus Way. So it is possible, not probable, perhaps,
Speaker 1: but it is possible that one of the justices could
Speaker 1: change their vote. Absolutely justices in and have changed their
Speaker 1: votes after a conference and after majority opinions has been circulated.
Speaker 1: It happens, you know, with some regularity. Without saying it's frequent,
Speaker 1: it does happen, and it happens many times over the years.
Speaker 1: One prominent example was Planned Parenthood Recasey, one of the
Speaker 1: cases that the Supreme Court reports to overturn in this
Speaker 1: draft opinion. In that case, Justice Kennedy originally voted to
Speaker 1: overturn Roe versus Wade and to uphold broad regulations of abortion,
Speaker 1: and then he changed his mind after the majority opinion
Speaker 1: started circulating. And it's happened in other much less controversial
Speaker 1: areas as well. Sometimes justice is fine that they think
Speaker 1: an outcome is right until they see an opinion explaining
Speaker 1: the outcome, and then they say, wait, that reasoning an
Speaker 1: argument just doesn't work for me. I think I'm going
Speaker 1: to change my votes. I would be very surprised if
Speaker 1: that happens in this particular case. I think these justices
Speaker 1: have been thinking about Roe versus Wade for many decades.
Speaker 1: All of them grew up at a time when roversus
Speaker 1: Wade was a very controversial opinion, the subject of much
Speaker 1: conversation among the Federalist society gatherings that that all of
Speaker 1: the current conservative justices attended with regularity, and so I
Speaker 1: think that their views on this issue are not really
Speaker 1: in play. And that brings us back to all the
Speaker 1: confirmation hearings where every single justice said Row was established precedent.
Speaker 1: I guess that doesn't mean much anymore. Well, I guess
Speaker 1: it only means that it's an established precedent, but not
Speaker 1: that that precedent will be upheld if they get the
Speaker 1: chance to rule on it. You know, there is nothing
Speaker 1: wrong with overturning precedent as a matter of constitutional law.
Speaker 1: The Court has done that many times, and we'll do
Speaker 1: it many times in the future. There is perhaps a
Speaker 1: little bit more of a concern about overturning precedent right
Speaker 1: now when we know that this challenge to Roe versus
Speaker 1: Way was really instigated by changing personnel on the Supreme Court,
Speaker 1: and it really undermines the Court's legitimacy to overturn widely supported,
Speaker 1: incredibly well recognized precedent like ro versus Wade, Life Planned
Speaker 1: Parent Heard versus Casey immediately after three new justices have
Speaker 1: been appointed. I think that really calls into question the
Speaker 1: courts neutrality, and for an opinion that claims to want
Speaker 1: to leave the issue of abortion to politics and not
Speaker 1: constitutionalize it, we see that the constitutional question itself is
Speaker 1: decided by politics, decided by the election and Mitch McConnell's
Speaker 1: manipulation of the confirmation process to get three justices appointed
Speaker 1: to the Supreme Court in the Trump years. People are
Speaker 1: now speculating. A leader in his opinion said, this doesn't
Speaker 1: mean that other rights are in jeopardies. But does this
Speaker 1: mean that other rights based on privacy are in jeopardy,
Speaker 1: for example, same sex marriage, or contraception, or interracial marriage.
Speaker 1: I think all of those precedents are called into question
Speaker 1: quite directly by all opinion. You're absolutely right. Alito's opinions
Speaker 1: to those decisions are not affected by the abortion move
Speaker 1: he says, because abortion is different. Abortion is different, he says,
Speaker 1: because it involves potential fetal life and protecting potential to life. Well,
Speaker 1: that's there as a distinction, except it's not a distinction
Speaker 1: that's grounded in constitutional law or constitutional analysis. Right, there's
Speaker 1: nothing in the history and tuition of the fourteenth Amendment
Speaker 1: that says anything about fetal life or why the rights
Speaker 1: that affect third parties aren't going to be recognized by
Speaker 1: the Constitution. We have many rights that adversely affect third parties.
Speaker 1: Think of the Second Amendment right to keep and bear
Speaker 1: arms that results in a number of people dying every
Speaker 1: year from gun violence. And so he makes a distinction
Speaker 1: of the distinguish away of those cases. But the basis
Speaker 1: for the distinction has no constitutional grounding. It's just a
Speaker 1: policy preference. Well, we think this is different because it's
Speaker 1: uh being a life involved. Note that some of the
Speaker 1: other privacy rights that he referred to, such as the
Speaker 1: right to use contraception, arguably have a similar effect Row
Speaker 1: versus Way, and that a potential feet of life is involved.
Speaker 1: More importantly, I think that despite Alito's effort to distinguish
Speaker 1: those other privacy right cases, the history and tradition analysis
Speaker 1: that Alito offers that says we only really look to
Speaker 1: history and law before eighteen sixty eight, when the Fourteenth
Speaker 1: Amendment was adopted, would not support many of the privacy
Speaker 1: rights that the Court has found. The rights interracial marriage
Speaker 1: would not be recognized under this history and traditional test
Speaker 1: that Alito proposes. Here, a right to same sex intimacy
Speaker 1: or a right to minors to have some sexual privacy
Speaker 1: rights would not be recognized at all if we do
Speaker 1: the same history and tradition analysis that he offers. And
Speaker 1: so I think, despite Aldo's assurances, all those other rights
Speaker 1: are in jeopardy. Conservatives have had their eye on Row
Speaker 1: for so long. What is it about Row that has
Speaker 1: led this whole sort of revolution. Well, I think it's
Speaker 1: that there's a real large co hort and American society
Speaker 1: that wants to restrict abortion, that doesn't want women to
Speaker 1: have these rights that doesn't want women to be able
Speaker 1: to exercise this kind of control over their bodies and sexuality.
Speaker 1: And what's happened in in the last thirty years is
Speaker 1: that while there's been plenty of bad decisions about the
Speaker 1: Supreme Courts, plenty of decisions poor reasoning, but few of
Speaker 1: them occasion the kind of controversy and backlash that ro
Speaker 1: versus Wade has caused. And I think that's part of
Speaker 1: the reason why the Court will overturn rovers way, because
Speaker 1: these justices have been steeped in the idea that Roll
Speaker 1: versus Wade is the original sin of American constitutional law,
Speaker 1: the most obvious example in all of American history of
Speaker 1: unbridled judicial activism, and they see it as their role
Speaker 1: to overturn it and to restore an earlier version of
Speaker 1: American law in which women's bodily autonomy was not recognized
Speaker 1: as a constitutional right. Thanks so much for your insights ATAM.
Speaker 1: That's Professor Adam Winkler of u c l A Law School.
Speaker 1: Opioid overdose has killed nearly half a million Americans over
Speaker 1: two decades, and the epidemic is getting worse instead of better.
Speaker 1: D e a administrator and Milgram says an American is
Speaker 1: dying every five minutes from an overdose, and seventy five
Speaker 1: percent of those deaths are from opioids. It's you know,
Speaker 1: Americans of all ages, cuts across every single demographic rural, urban, suburban,
Speaker 1: and that people are dying at record rate. San Francisco
Speaker 1: says opioid manufacturers Allergan and Teva distributor and a and
Speaker 1: pharmacy giant Walgreens flooded the city streets with prescription drugs
Speaker 1: and it's suing over the toll opioids have taken on
Speaker 1: the city where one quarter of emergency room visits are
Speaker 1: the result of opioid related issues. Joining me is healthcare
Speaker 1: attorney Harry Nelson of Nelson Harden In Harry, san Francisco
Speaker 1: is using a public nuisance theory? What does it have
Speaker 1: to prove to make its case? So to prove a
Speaker 1: public nuisance, San Francisco has to prove that the three
Speaker 1: drug companies at issue, along with Walgreen's pharmacy, basically engaged
Speaker 1: in behavior that's so harmed so many people in San
Speaker 1: Francisco and that they need to be essentially forced to
Speaker 1: pay for that harm. And the harm here that we're
Speaker 1: talking about, of course, this prescription opioid, and the claim
Speaker 1: is that these companies are responsible for having flooded San
Speaker 1: Francisco with prescription opioids and then failed to prevent them
Speaker 1: from being routed into the illegal market for misuse. San
Speaker 1: Francisco claims they aggressively marketed opioids to doctors as a
Speaker 1: risk free panacy for all forms of pain. What's the
Speaker 1: line between aggressively marketing and just marketing. It's an interesting question.
Speaker 1: I think, you know, it's much easier when we talk
Speaker 1: about this question of where the line is on marketing
Speaker 1: to look at behavior from for example, Perdue Pharma, where
Speaker 1: it was very clear that they were aware that the
Speaker 1: problem of overdoses and the addictiveness of the drug was
Speaker 1: causing problems, and they just kept marketing more aggressively and
Speaker 1: sort of building that issue into their marketing. It's a
Speaker 1: lot more fuzzy when you come to companies like Walgreens
Speaker 1: or Alegant Tava Pharmaceutical, where they were offering these drugs
Speaker 1: in the market. It's not clear what they did that
Speaker 1: was so unusual in that marketing, And frankly, I think
Speaker 1: that the city is going to have a very hard
Speaker 1: time showing that there was anything particularly distinctive about the
Speaker 1: way that these drugs were promoted, is that somehow ignored
Speaker 1: the risk associated with them. The defendants claimed that they
Speaker 1: were sort of bit players in the opioid crisis, and
Speaker 1: they say the blame should be directed at Perdue, which
Speaker 1: has declared bankruptcy. I think it's a compelling argument. You know.
Speaker 1: The reality is that there were a lot of companies
Speaker 1: that manufactured and distributed, and in the case of the pharmacy's,
Speaker 1: dispensed these drugs. But they are not all equal. Right,
Speaker 1: Perdue Pharma made billions of dollars and orchestrated an aggressive
Speaker 1: campaign to manipulate how doctors and patients perceived the risk.
Speaker 1: There's not the same kind of evidence with regard to
Speaker 1: Allergan and Haveva. These are companies that clearly had a
Speaker 1: business line devoted to pain medication, but there's no signs
Speaker 1: that I've seen to this point to suggest that they
Speaker 1: were somehow scheming to hide the risks associated with these
Speaker 1: medicines or doing something to promote them more aggressively than
Speaker 1: all the other medications that they sell. I personally think
Speaker 1: that the city has an uphill battle In this case,
Speaker 1: before trial, defendants J and J and three large distributors
Speaker 1: reached a twenty six billion dollar nationwide settlement of opioid claims.
Speaker 1: As I mentioned, Perdue went bankrupt five days before trial,
Speaker 1: and O Pharmaceuticals reached a deal with the city. Let's
Speaker 1: say the jury does fund these drug companies in this trial,
Speaker 1: lie do they consider the settlements in deciding damages. If
Speaker 1: they reach a decision that there is liability, that the
Speaker 1: city proved his case of a public nuisance, the jury
Speaker 1: will then be asked to apportion responsibility and to allocate
Speaker 1: some responsibility to different companies. So there's going to be
Speaker 1: a moment where a jury is asked to decide how
Speaker 1: much Allergan, for example, is responsible or how much Walgreen
Speaker 1: is responsible of the total amount of liability here. And
Speaker 1: and that's a very you know, it's hard to see
Speaker 1: how a jury is going to be in a good position,
Speaker 1: assuming that they get that far, to make a really
Speaker 1: nuanced decision when you have a lot of different companies,
Speaker 1: you know, promoting a drug for which there was enormous
Speaker 1: demand clearly, you know, for pain, but which was risky.
Speaker 1: That's the process the jury will be forced to go through.
Speaker 1: But I can't say that I am optimistic that it
Speaker 1: will be an easy one or necessarily precise one for
Speaker 1: deciding how much each party should be response able to pay.
Speaker 1: Do you have any insight into why the other you know,
Speaker 1: why J and J D, etcetera. Why they decided to settle.
Speaker 1: Some of these companies have previous cases where there has
Speaker 1: been more negative evidence. So I think in the case
Speaker 1: of Endo, for example, there there was some evidence, not
Speaker 1: nearly to the extent that we had against Purdue Pharma,
Speaker 1: but that they were a company that was aware of
Speaker 1: the risk and was marketing, for example, offering inducements to
Speaker 1: doctors to promote the drug. So Endo was one of
Speaker 1: those companies that had more risk because there was some
Speaker 1: bad behavior. And I think that a lot of the
Speaker 1: companies that chose to settle were companies that had something
Speaker 1: that they were afraid the prosecutors in the city attorneys
Speaker 1: here would would point to to actually make them look
Speaker 1: like they had behaved badly. And my feeling is just
Speaker 1: the opposite that in this case, the companies that are
Speaker 1: still standing don't see that evidence and are challenging the
Speaker 1: city to the case that they that they actually did
Speaker 1: anything wrong here. Some of the claims against Walgreens are
Speaker 1: that the pharmacy was under guideline to take fifteen minutes
Speaker 1: to fill prescriptions and that didn't check enough. That seems
Speaker 1: pretty thin. Yeah, you know, my perspective on this is
Speaker 1: that over the last two decades, we've seen the standards
Speaker 1: that are expected for pharmacies, for example, changed radically, and
Speaker 1: this whole set of expectations of how much compliance, how
Speaker 1: much verification a pharmacist and a pharmacy is expected to
Speaker 1: do to verify that something is legitimate, have been completely overhauled.
Speaker 1: But if we're not talking about Walgreen's actually affirmatively doing
Speaker 1: anything bad, we're saying that they failed to do certain
Speaker 1: checks that we wish they would have done. I definitely
Speaker 1: think that if you talk to anybody who is learning
Speaker 1: to be a pharmacist today, they're they're learning a very
Speaker 1: different set of responsibilities than the people who went through
Speaker 1: pharmacy programs, you know, twenty years ago. But but I
Speaker 1: do think that, um, I think it's a tough, tough
Speaker 1: argument because there was a way of doing business. Pharmacies
Speaker 1: were entitled to just see that if if it really
Speaker 1: was a prescription from a doctor to assume that it
Speaker 1: was legitimate and then all of a sudden. In cases
Speaker 1: like this, the argument is being made that no, the
Speaker 1: pharmacists had to do more, And it's not clear how
Speaker 1: much more pharmacists could do beyond just seeing that a
Speaker 1: doctor prescribed this to a patient. It's not clear that
Speaker 1: we want pharmacists to be second guesting doctors. So I
Speaker 1: actually think there's a very tough argument the city is
Speaker 1: going to have to try to prove here. This public
Speaker 1: nuisance legal strategy against drug makers for causing or fueling
Speaker 1: the opioid crisis hasn't had a very good track record,
Speaker 1: has it. A California judge ruled in favor of the
Speaker 1: defendants five pharmaceuticals, including Teva, five months ago, and the
Speaker 1: Oklahoma Supreme Court overturned a ruling against Johnson and Johnson.
Speaker 1: Has this public nuisance argument been successful anywhere? Yeah, it
Speaker 1: has had more failures than successes. It's definitely. You know,
Speaker 1: public nuistance comes out of an environmental context, where it
Speaker 1: was much easier to say that a certain company polluted
Speaker 1: the environment in a certain area, and it was a
Speaker 1: very direct link from the source of the harm to
Speaker 1: the actual harm the pollution in those cases. In this context,
Speaker 1: where we see a legitimate medication manufacture, distributed, prescribed by doctors,
Speaker 1: dispense and then traveling through the system in ways that
Speaker 1: cause harm, people getting addicted, people selling it onto the street,
Speaker 1: it's a lot more complicated, with a lot more different players,
Speaker 1: and it's not that clear link that we see in
Speaker 1: those environmental cases. So I think that the public nuistance
Speaker 1: I understand why it's appealing to government and to attorneys
Speaker 1: who are looking to make a case to try to
Speaker 1: get the costs that are were imposed here, which we're
Speaker 1: significant on healthcare, on law enforcement across communities, to be shared.
Speaker 1: But it's not an easy theory and I'm not bullish
Speaker 1: on the future of public nuisance litigation in this area.
Speaker 1: This is the fourth bell Weather case I believe, chosen
Speaker 1: for trial from about three thousand in the federal opioid litigation.
Speaker 1: Explain why it's called a bell Weather case. What that means.
Speaker 1: We had like a log jam, you know, of just
Speaker 1: thousands and thousands of cases that had to be tried.
Speaker 1: So so when we say bell Weather, we're the judge
Speaker 1: in this case was basically selecting a handful of representative
Speaker 1: cases to look at harms in different context. So this,
Speaker 1: I believe is the first urban focused case of how
Speaker 1: did opiod harm you know, how did it progress, what
Speaker 1: did it look like in a city, as opposed to
Speaker 1: some of the rural cases, for example in Ohio that
Speaker 1: were marked as bell weathers. So the idea is that
Speaker 1: hopefully the parties see how the arguments play out in
Speaker 1: these cases, how juries respond to them, and they use
Speaker 1: that as a kind of test so that we don't
Speaker 1: have to go through the same exercise over and over again,
Speaker 1: and that the parties on both sides will have a
Speaker 1: better sense of what their odds of success are, what
Speaker 1: their liability risks are, and settled cases based on the
Speaker 1: indicators that come out from this case. Let's talk of
Speaker 1: this a little bit about Perdue. A six billion dollar
Speaker 1: deal was approved in bankruptcy court last year, but an
Speaker 1: appeals court threw it out in a surprising decision, and
Speaker 1: now it's being argued over in a New York court. Yes,
Speaker 1: so this is super interesting. The reason the settlement was
Speaker 1: thrown out on appeal was the question of whether a
Speaker 1: bankruptcy judge had the power to give the members of
Speaker 1: the family the Stackler family, which owned Perdue Pharma protection right.
Speaker 1: The Stackler family is a very wealthy billionaire family that
Speaker 1: did not file for bankruptcy. The company that they founded did.
Speaker 1: But their insistence was that they were only going to
Speaker 1: settle and pay these billions of dollars out of Perdue
Speaker 1: if they also were given this legal shield, and so
Speaker 1: the court overturned that, and so now the parties are
Speaker 1: back in court arguing about it, and we're still seeing
Speaker 1: the family completely dug in and protecting themselves right the family.
Speaker 1: By the way, reports have come out that the family
Speaker 1: took over ten eleven billion dollars out of the company
Speaker 1: in the years that they were aware of this crisis.
Speaker 1: And so it's still up in the air weather we're
Speaker 1: going to get a settlement here. I assume we will eventually,
Speaker 1: but it's a fascinating question of how far courts can
Speaker 1: go to protect the individual families from the harm resulting
Speaker 1: from the company that they that they owned and managed.
Speaker 1: And the Sackler family has come to represent sort of
Speaker 1: like the evil kingpins of the opioid crisis, So there's
Speaker 1: not much sympathy for them at all. You know. The
Speaker 1: truth is that you know, most of the family was
Speaker 1: far away from this business. There were a handful of
Speaker 1: family members Dr Richard Sackler who were at the heart
Speaker 1: of this, you know, in some ways, you know, it's
Speaker 1: a it's a tricky thing that the family. Clearly, any
Speaker 1: time you walk away with over ten billion dollars from
Speaker 1: a business that killed thousands of people and imposed billion
Speaker 1: dollars farm, you're gonna have a tough time getting sympathy.
Speaker 1: But I do feel for the family members who weren't
Speaker 1: involved that their name was used to grace you know,
Speaker 1: museums and and all kinds of you know, amazing medical
Speaker 1: schools and institutions all over the world for their philanthropy.
Speaker 1: Has now become a sort of keyword for abusive behavior
Speaker 1: in the pharmaceutical world. So it's a lot of damage
Speaker 1: to the Stackler name that's gonna last far longer than
Speaker 1: these cases. And finally, I wanted to get your take
Speaker 1: on the Commissioner of the Food and Drug Administration told
Speaker 1: the Senate that he wants to toughen standards for drugmakers
Speaker 1: who want to sell new opioids. Congress would have to
Speaker 1: give the FDA that power. Do you think that's a
Speaker 1: good idea? Look I think it's a good idea, although
Speaker 1: I do I think there's a real conundrum here. The
Speaker 1: reality is that something like one in five American adults,
Speaker 1: fifty million people complain that they live in severe or
Speaker 1: serious chronic pain. So we have an enormous need for
Speaker 1: these drugs. We've learned how dangerous they can be, how
Speaker 1: addictive they are, but we've also seen that when you
Speaker 1: deny people access to them, you know, it leads to
Speaker 1: terrible things, including increased risks of suicide. And so we
Speaker 1: do need more controls, and I think it's a good
Speaker 1: thing for there to be more effort. But at the
Speaker 1: same time, we've learned, for example, that when the FDA
Speaker 1: requires the drug companies, for example, to put out additional
Speaker 1: educational materials to doctors so that doctors understand the risk,
Speaker 1: and the net outcome of that is that doctors actually
Speaker 1: prescribe more of the medication. So I think that we
Speaker 1: sort of have these opposing tensions where there's an enormous
Speaker 1: need for these medications, doctors are are nervous in the
Speaker 1: in the current environment about what they can and can't do,
Speaker 1: and I think more clarity from government, more requirements that
Speaker 1: if if those translate to making it safer for doctors
Speaker 1: to prescribe to patients. I think those will be a
Speaker 1: good thing. Thanks Harry. That's Harry Nelson of Nelson Hardeman
Speaker 1: And that's it for this edition of The Bloomberg Law Show.
Speaker 1: Remember you could always at the latest legal news on
Speaker 1: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,
Speaker 1: and at www dot bloomberg dot com slash podcast Slash Law.
Speaker 1: I'm June Grosso and you're listen. Seemed to be Born