Seattle, Washington – As state lawmakers continue to grapple with the issue of tort reform, the detrimental effects of frivolous lawsuits and contingency-fee arrangements have come into the spotlight. Studies consistently show that such litigation hampers economic growth, reduces job opportunities, and burdens taxpayers. In 2021, over 60 percent of all tort cases in the United States were part of pending multidistrict litigation (MDL) cases, which further strains the legal system and delays justice for deserving plaintiffs.
One significant factor contributing to the prevalence of mass tort cases is the use of contingency-fee arrangements by attorneys, allowing them to earn exorbitant sums from class-action lawsuits. This problem is exacerbated when private law firms enter into these arrangements with local and state governments, including state attorneys general. Though proponents argue that these public contingency-fee arrangements provide an efficient way for states to take legal action against companies without using taxpayer funds, concerns arise regarding the lack of public oversight and potential conflicts of interest.
The issue at hand is the alignment of state power not with justice but with profit incentives and political motivations. Plaintiff lawyers have realized that by identifying controversial issues, they can gather sufficient public support to sue on behalf of an entire community, bypassing traditional class-action limitations. Public-nuisance tort claims, particularly, have become rife with contingency-fee arrangements. These claims originated in common law to protect public interests in property, health, and communal safety. However, modern public-nuisance litigation has dangerously strayed from its original purpose.
The opioid crisis serves as a tragic example of how contingency-fee arrangements and public-nuisance doctrine can go awry. Private law firms have drained public funds by diverting settlement money that should support victims who have suffered genuine harm. This improper use of resources has hindered the recovery of communities devastated by the opioid epidemic. Washington State’s handling of the issue is particularly concerning, as it has falsely blamed Johnson & Johnson for the crisis and diverted millions of dollars for political purposes instead of aiding those in need.
Washington’s case against Johnson & Johnson mirrors the flawed approach of Oklahoma, whose public-nuisance opioid case was rejected by the state’s Supreme Court. The court correctly recognized that public-nuisance doctrine was never intended to address an expansive national crisis without a proper class-action lawsuit. Nevertheless, Washington State persists in pursuing this misguided strategy, disregarding Oklahoma’s failure. Surprisingly, the state rejected a national settlement that would have provided immediate resources to combat the opioid crisis, choosing instead to prioritize its own agenda.
To mitigate the obstacles to justice posed by contingency-fee arrangements, state lawmakers must enact legislation that significantly restricts or outright forbids these arrangements. Outsourcing the critical role of state attorneys general to private counsel undermines the principle of self-governance. Additionally, the Washington Supreme Court should follow the path set by the Oklahoma Supreme Court and reject any further expansion of public-nuisance doctrine.
The need for meaningful tort reform is evident. By addressing the issues surrounding contingency-fee arrangements and public-nuisance litigation, lawmakers can restore fairness, protect public resources, and ensure that justice is served. It is imperative that the interests of all stakeholders, including genuine plaintiffs and the public, take precedence over profit-driven strategies.
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