Judge Was Right to Dump DA’s Suit Against Drug Makers

(Editor’s note: The following is an opinion piece by Kim Stone, president of the Civil Justice Association of California.)

The lawsuit that Orange County District Attorney Tony Rackauckas filed against five makers of opioid painkillers was dismissed last week. This case is a great example of why local governments should not partner with private attorneys to sue businesses.

We give governmental prosecutors great power because they can lock people up and because they represent us, the people. However, we also expect them to have a higher ethical duty – to try to be just and fair. Private attorneys have a different duty – a duty to zealously represent the interests of their client. We should not mix the two together.

I trust a government lawyer who is going to get paid the same whether the case wins or loses to do the right thing more than I trust a contract contingency fee plaintiff lawyer who only gets paid her fees if the case settles or wins. We as citizens need to watch these kinds of dangerous liaisons between local prosecutors and plaintiff attorneys and try to stop them from happening.

The Orange County/Santa Clara case against the drug makers, where local prosecutors partnered with private plaintiff attorneys to sue pharmaceutical companies, was an example of extreme overreach.

The complaint (available in full, all 105 pages of it, thanks to the LA Times, here) alleges that the companies that make opioid painkillers should pay for the counties’ costs for substance abuse treatment, unemployment, emergency room visits, and other social services, as well as paying the full legal fees of the private attorneys who sued them.

The prosecutors alleged that some people who took the painkillers get addicted to them, they then switch to heroin when they can no longer get the opioids. Then those addicts lose their job, their families, their homes and then commit crimes or die, so, pay up Pharma!

And the prosecutors alleged this despite the fact that all these painkillers went through the regulatory process of our Federal Food and Drug Administration, a group of scientists who decided that for sick people or people in extreme pain, the benefits of the medicine outweighed the risks. The prosecutors sued, despite the fact that you can only get these painkillers via prescription from a doctor who has determined, that, for you, the benefits to taking the medicine outweigh the risks.

Judge Moss issued a sternly worded smackdown to the prosecutors in the case.
Not one case cited by plaintiff involved, and indicated the propriety of, a court immersing itself in the convoluted, exacting, expertise-driven, issue-expanded, nuanced action which is involved here.

The patients, potential patients, and the medical community deserve more. This action could lead to inconsistencies with the FDA’s findings, inconsistencies among the States, a lack of uniformity, and a potential chilling effect on the prescription of these drugs for those who need them most. The proposed ongoing role of the court in this litigation, and in the monitoring of any decision it makes, is a monumental endeavor. The court does not shrink from its responsibilities to handle complex, convoluted litigation; it handles such matters every day of the week. It does, however, take pause at involving itself in an area which is best left to agencies such as the FDA who are designed to address such issues.

This case, and its dismissal, shows why local governments should be loath to partner with private plaintiff attorneys to prosecute business. When dollar signs become more important than justice, we all lose.

Voice of OC is interested in hearing different perspectives and voices. If you want to weigh in on this issue please contact Voice of OC Engagement Editor Julie Gallego at jgallego@voiceofoc.org.