Just weeks after U.S. District Judge Dan Aaron Polster convened the first hearing to discuss thousands of opioid lawsuits concentrated in his Ohio court, he announced who would lead the plaintiffs’ team.
It was hardly a surprise. Like most judges in charge of multidistrict litigation, Judge Polster selected from a small group of lawyers who control the game. Leading the list was Joe Rice of the South Carolina law firm Motley Rice, famous for his role in negotiating a $260 billion global settlement with the tobacco industry in the late 1990s. He was joined by Elizabeth Cabraser of Lieff Cabraser, a San Francisco firm also involved in the tobacco settlement; Baron & Budd, a famously pugnacious Dallas asbestos law firm; and Chris Seeger, a New York lawyer who played a lead role in a concussion settlement with the NFL criticized for underpaying players and overpaying their attorneys.
With their position secure at the top of the pecking order in the opioid MDL, these lawyers are assured of winning billions of dollars in legal fees if the cases settle, on top of the $14 billion many of them shared from the tobacco settlement. The money will come, as always, from the companies they sue—and, ultimately, from the consumers who buy their products and services.
This litigation tax is an increasingly predictable supply of cash enriching an increasingly entrenched class of lawyer-kings who have figured out how to turn the U.S. court system into a money-making machine. Civil trials are supposed to be high-risk affairs. But the combination of mass advertising to drum up clients and recruiting government entities as plaintiffs has driven much of the risk out of this business.
Many of the same lawyers leading the opioid litigation are investing hundreds of millions of dollars in television ads to recruit plaintiffs to sue over common products like Johnson’s Baby Powder and Roundup weed killer. Even the federal judge overseeing Roundup litigation said some of the plaintiff experts strayed into “junk science,” and the evidence in the talc lawsuits consists mostly of contested testing on samples from unsealed old bottles plaintiff lawyers say they purchased on eBay. But with tens of thousands of plaintiffs at their command, those lawyers almost certainly will extract lucrative settlements in both cases.
This shock-and-awe approach to litigation is especially effective when government is the client. Plaintiff lawyers who were heavy campaign contributors to Oklahoma’s Republican Attorney General Mike Hunter collected $70 million in fees from opioid settlements before J&J decided to take the state’s case against it to trial. It seemed like a good gamble: J&J never had more than about 2 percent market share in Oklahoma, and its two products were particularly abuse-resistant. No matter: A state judge socked the company with a $465 million penalty. If upheld on appeal, the state’s outside lawyers will collect another $90 million in fees.
Perhaps this feeding frenzy will be self-limiting. The same public-nuisance theory plaintiff lawyers are using to sue over opioids is perfectly suited for alcohol and cell phones, both of which can be directly traced to countless vehicle crashes. Maybe when consumers realize they are paying a small king’s tax to lawyers every time they buy a beer or make a call, they will rebel. More likely, they’ll call the number on their TV screen and see if they, too, have a claim.