Elected Officials — Not Lawyers Out for a Buck — Are Responsible for Fixing the Opioid Crisis

It appears that lawmakers on both sides of the political aisle are working in conjunction with the trial bar and advancing proposals that serve the interests of trial lawyers. It is no secret that the trial bar has been a formidable presence in statehouses nationwide for many years, typically finding sympathetic audiences with left-leaning lawmakers. But there has been an unmistakable trend in recent years of Republicans, particularly those often dubbed to be populists, aligning themselves with plaintiffs’ lawyers. 

One Republican state attorney general now finds herself in the national spotlight due to her targeting of major retail pharmacies in her state’s opioids lawsuit. Florida Attorney General Ashley Moody has aggressively pursued these firms as part of her state’s case despite a large settlement reached recently with some of the manufacturers of the drug as well as distributors. Rather than use the lawyers in her office to bring this litigation, AG Moody has hired personal injury law firms that will receive a percentage of any award or settlement – a development that no doubt will improve her popularity with the plaintiffs’ bar.  

The issue here is not whether there is a public health crisis due to the opioid epidemic. It is undeniable that there is. AG Moody’s litigation raises important issues regarding the causes of the crisis and who should be held accountable as a result. 

It is well known that illegal fentanyl is a major factor in the national opioid crisis. Fentanyl overdoses are now the leading cause of death in adults aged 18 to 45. Countless media reports highlight the fact that much of it comes into the country from China through the southern border of our nation.   

One elected official who understands the need to combat the illegal trafficking of fentanyl is AG Moody. She has highlighted publicly drug-trafficking from other countries as a significant driver in the opioid crisis and its devastating and deadly impact. In criticizing the Biden Administration’s overall immigration and border enforcement policies, and the drug crisis in particular, she has called on the Secretary of Homeland Security to resign. 

The Florida lawsuit against pharmacies will not stop the scourge of illegal opioids, particularly those smuggled illegally into the country. The state’s lawsuit seeks to lay the blame for this crisis at the feet of pharmacies, manufacturers and distributors. Each of these businesses share a common attribute: They are extensively regulated from start to finish, from the Food and Drug Administration’s approval of a medication to the allowable quantities manufactured, where they are distributed, and which doctors prescribe them – by the U.S. Drug Enforcement Administration. Legal opioids dispensed at pharmacies must be prescribed by a licensed physician. All that stands in sharp contrast to drug cartels and smugglers, who are the major source of the underlying problem.   

In addition, pharmacies are required to fill proper prescriptions, and in many respects litigation like the AG’s case holds them legally liable for doing what they are required to do. To make matters worse, if a pharmacy refuses to fill a properly issued prescription, a patient can sue over the refusal. The pharmacy is truly in a “Catch-22,” situation.  

Our civil justice system, including lawsuits brought by state AGs, exists to resolve disputes – not to perform the functions of legislators and regulators. Broader public policy challenges should be addressed by those entrusted with those responsibilities. In the case of opioids, that includes Congress, state legislators, state and federal law enforcement and public health officials and regulators. They are obliged to serve and protect the public, and they are accountable to us all. By contrast, plaintiffs’ lawyers operating on a contingency fee basis are driven by a profit motive. 

Floridians and all Americans want the scourge of opioids to be addressed.  Responsibility for doing so lies with the people we elect to represent us, not with lawyers motivated by a potential payout. 

Tiger Joyce is the President of the American Tort Reform Association (ATRA).