Tennessee’s opioid crisis requires legislative changes, not more lawsuits

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State Attorney General Herbert Slatery shouldn’t be able to hire outside counsel to pursue his litigation against Walgreens without disclosing any of the contract details to the state’s taxpayers.

This op-ed was originally published by The Tennesseean.

Tennessee Attorney General Herbert H. Slatery III has continued an alarming trend of Republican attorneys general choosing to align themselves with trial lawyers to pin the blame on deep-pocketed businesses for a variety of societal ills. Recent litigation has made it clear that the trial bar’s historical influence is no longer limited to just Democrats.

Earlier this month, Slatery filed a lawsuit against Walgreens, accusing the pharmacy chain of violating the state’s Consumer Protection Act and public nuisance statute for its distribution of prescription opioids. Slatery is the latest Republican AG to advance such litigation that primarily serves the interests of trial lawyers. Earlier this year, Florida Attorney General Ashley Moody pursued similar litigation despite a large settlement reached between the state and opioid manufacturers and distributors.

There is no question that the opioid epidemic has caused a public health crisis. This is a serious issue that deserves our lawmakers’ full attention. But while state attorneys general like Slatery claim to represent the broader public interest, their litigation primarily benefits the trial lawyers involved while delaying resolution for the victims. Instead of opening the floodgates for a new wave of lawsuits against anyone with deep pockets, Tennessee needs real leadership from state lawmakers who are held accountable by voters.

The opioid crisis in the United States has been well-documented in recent years. Fentanyl, a powerful synthetic opioid, is a major contributor to this problem. The vast majority of illegal fentanyl comes into the country from China through the southern border. This is a serious problem that requires a comprehensive and well-coordinated legislative response from our state and federal lawmakers.

Unfortunately, unscrupulous litigators seeking to enrich themselves have a well-coordinated response too. Over the last couple of decades, the trial bar has perfected its trial lawyer playbook to exploit our nation’s biggest crises, raking in untold millions in legal fees. Entrepreneurial law firms gallivant from state to state seeking out favorable judicial climates and friendly AG partners to pursue litigation against industries and businesses with deep pockets. Many of these contracts, inked without competitive bidding and with little or no outside oversight, have been rife with political favoritism and inside dealing.

Slatery has hired the services of outside counsel Paine, Tarwater, & Bickers to direct the lawsuit against Walgreens. The use of private contingency-fee lawyers by state attorneys general has become increasingly common. These private attorney contracts align the prosecutorial power of the state with a profit incentive, based on contingency fees, to maximize damages no matter the facts presented in a case.

Currently, there are 24 states that have passed transparency in private attorney contracting (TiPAC) laws to prohibit state agencies from contracting with a private attorney unless the AG ensures the contingency fee representation is both cost-effective and in the public interest. TiPAC laws bring greater transparency and accountability to attorneys general offices across the country. Unfortunately, Tennessee is not one of the 24 states that have TiPAC laws. This means that Slatery can hire outside counsel to pursue his litigation against Walgreens without disclosing any of the contract details to the taxpayers of the state.

While there may be important issues regarding the regulations of pharmaceutical practices, those debates should be conducted by lawmakers and regulators in state capitals and Washington, D.C. – not in courtrooms with unaccountable law firms. the American Tort Reform Association encourages Slatery to embrace good government principles and work to create transparency around this litigation. Tennessee taxpayers should be assured that his office is working in their best interests and not those of the entrepreneurial trial lawyers.

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