Legal actions can have public health consequences

OPINION:

While there are many threats looming to public health these days, few would expect that the courtroom presents one of the greatest challenges. However, recent events lead me to believe this is becoming more and more the case.

It seems like every day, a new headline is published about another prominent lawsuit filed against a corporation under an expanded use and scope of the “public nuisance” legal theory. Promising to address a wide range of issues, from the opioid epidemic to climate change and environmental cleanups, many of these cases are pursued under the guise of the public interest and push the law far beyond its original intent.

Unfortunately, such an aggressive interpretation of existing law threatens to undermine the medical supply chain and jeopardize medical progress. The fact that some attorneys general—egged on by bad actors who seek to manipulate the legal system to improve their bottom line—are willing to push forward with these cases in light of such realities demonstrates a concerning willingness to gamble with public health.

To date, a significant amount of public nuisance litigation has centered around the opioid crisis, with cases cropping up throughout the country. While there is no doubt that the opioid epidemic has ravaged our country and caused countless tragic deaths, such lawsuits must be viewed through a broader public health lens.

Many of the companies swept up in such litigation make much more than opioids and are innovators responsible for creating scores of lifesaving drugs. Ensuring that the industry contributes to recovery and treatment efforts is one thing; to date, more than $55 billion has been secured. However, using these companies to advance desired policy and regulatory outcomes is an end run beyond the judiciary realm and may create an entirely new public health crisis.

While these settlement dollars will certainly help with local efforts to counter the opioid crisis, these cases seem to ultimately serve the self-interest of the trial lawyers litigating them as much as anything else. The exorbitant contingency fee contracts secured from state and local governments and some attorney generals have already allowed them to cash into the tune of millions of dollars. And with little transparency on how settlement funds have been allocated, it is difficult to ascertain just how much plaintiffs lawyers have siphoned off from recovery and treatment programs to line their own pockets.

Yet despite this experience, some attorneys general around the country have now set their sights on a new round of public nuisance lawsuits that could pose similar public health risks. As recently as this summer, attorneys general in a handful of states were pursuing lawsuits against those in the plastics and petrochemical industries for what they deem to be their purported role in creating and exacerbating an alleged plastic pollution crisis. Not surprisingly, outside counsel who will reap the rewards of excessive contingency fees has been brought in to assist.

With a plastics research and advocacy summit approaching in late September, many attorneys general are expected to attend to learn more about the issue at hand. They should use this opportunity to discuss the entirety of the science, best practices, and solutions with their state’s respective policymakers to address this issue. It will also be important for them to weigh any potential legal action against this industry’s important role in promoting public health.

Plastics enable the production of safe, sterile medical devices and packaging, which are essential for preventing infections and ensuring patient safety. They are also used in various health care applications, such as syringes, IV bags, gloves, masks, and diagnostic equipment. Additionally, plastic packaging helps maintain the integrity of medications and vaccines during storage and transport, protecting them from contamination and extending shelf life. Banning them could lead to shortages of essential medical supplies that could have serious follow-on effects.

As the former Secretary of Health and Human Services, I understand the significant importance of being entrusted to protect the public’s best interest, especially in moments of crisis. However, judicial overreach and attorney general activism are systemic issues that must be stopped. Legal actions can have public health consequences. Americans deserve better than outsourcing prosecutorial discretion to plaintiff lawyers who don’t necessarily see advancing public welfare as their primary objective.

• Dr. Tom Price served as the 23rd Secretary of Health and Human Services and served as a Congressman for Georgia’s 6th Congressional District from 2005-2017.