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Nora Engstrom & Robert Rabin, Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, 73 Stan. L. Rev. 285 (2021).

In Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, Nora Engstrom and Robert Rabin set out to isolate the essential similarities and differences between the tobacco and opioids public health crises, and to extract lessons for future crises. In both the extent of the harm that they have done—and in their slow-motion train wreck extension across decades—both crises are vast. Indeed, they have lasted so long that they are part of the background noise of our lives. Yet, there is still shock value in Engsrom and Rabin’s short summaries of just how devastating these two crises have been—and still are. We all seem to have grown accustomed to appalling baseline levels of death and devastation. Engstrom and Rabin drive this point home simply and powerfully at the beginning of their fine article.

“Since 1999, opioids have claimed nearly 450,000 American lives, including nearly 50,000 in 2019 alone, dwarfing the carnage caused by either car crashes or gun violence. . .. Opioids are on track to claim the lives of another half-million Americans within the next decade. That’s like wiping out all of the men, women, and children in Atlanta in one fell swoop.” (P. 287.) Deaths “of course, only tell a sliver of the story. . . the lives of millions more are diminished and upended. Roughly, 2.1 million Americans suffer from an opioid-use disorder, over four million Americans misuse opioids each month, and an opiate dependent American child is born every fifteen minutes.” The economic costs of all this addiction and suffering are equally staggering; they are estimated to exceed “$500 billion annually, which works out to nearly 3% of U.S. gross domestic product.” (Pp. 287-88, emphasis in original.)

The devastation wrought by smoking is even worse, and still continuing. Even today, the “ravages of smoking-related disease remain at a historic level. Over the past half-century, Americans have consumed nearly 25 trillion cigarettes, which have, in turn, killed more than 20 million Americans—that’s more than ten times the number of U.S. citizens who have died in all wars fought by the United States, combined.” Even today, “though smoking rates are down sharply from their mid-twentieth-century peak . . . cigarette smoking in the United States accounts for more than 480,000 premature deaths per year.” Smoking thus accounts for “about one in every five U.S. fatalities—including the deaths of an estimated 41,000 nonsmokers from exposure to secondhand smoke.” (Pp. 288-89.) Only the immense harms that these public health disasters inflicted at their peaks makes the havoc that they are now wreaking seem merely endemic.

These two product-related public health disasters are tied together by the fact that cigarettes and opioids are highly addictive. The products responsible for other prominent public health disasters—asbestos, DES, the Dalkon Shield, Thalidomide, lead paint, Fen-Phen—were not addictive. Both cigarettes and opioids were sold in staggering numbers to a public that was “mostly unwitting,” and both products were spectacularly successful at addicting their mostly unsuspecting users. In both cases, the result was decades of failed individual tort lawsuits—forty years’ worth in the case of tobacco—even though the claims being brought were doctrinally unadventurous. In both cases, the product manufacturers failed to warn about, and even misrepresented, product risks—including the risk of addiction—of which they were or should have been aware. For long stretches of both crises the manufacturers behind the products were well aware of their dangers and determined to conceal them. And, in both cases, juries were consistently disinclined to find for individual plaintiffs—instead blaming the victims for the addictions that eventually precipitated their disabilities, declines, and deaths. Unbeknownst to the victims themselves, the defendants chemically disabled their agency, but juries overwhelmingly found the victims morally responsible for the harms that their addictions brought upon them.

There is more to this complicated tale and there is also more to the failure of the individual tort suits. Defendants waged total legal war against each individual plaintiff, and they directed their concealment and misrepresentation efforts as much at the public at large as at the users of their products. Furthermore, good things arose, Phoenix-like, out of the ashes of the individual suits. Their failure helped to catalyze class actions and led to lawsuits brought by public entities (e.g., by state AGs) which sought to recover the costs that these public health crises inflicted on state governments and taxpayers. States, unlike individual smokers, “had never smoked. As nonsmokers, they were impervious to character assassination and insulated from assumed-risks defenses.” Their clean hands turned the tables on the defendants. As the Mississippi Attorney General who pioneered the tobacco lawsuits observed, “State actions are not about personal responsibility; they are about corporate responsibility.” (Pp. 349-50.) Not only were these suits largely successful, the discovery that they also enabled eventually turned the tide of public opinion against the defendants.

The success of the state actions in the tobacco context was not unqualified, but it was significant and, in some ways, remarkable. (Pp. 342-44.) The litigation spawned by the opioid crisis is at an earlier stage, but it is now following a similar path. In the opioid crisis, litigation has come “to be aggregated, rather than individualized”; it has come to be “quarterbacked by public, rather than private actors”; and “like the tobacco litigation before it, the opioid litigation seems destined to involve the payment of eye-popping sums.” (P. 290.) Indeed, in the case of opioids, the unfolding sequence of legal actions has left opioid manufacturers caught in quicksand of their own making. They are now enmeshed in so many suits with so many state and local government actors that the path to a global settlement is difficult even to envision.

In short, even though private tort litigation has been spectacularly unsuccessful, it has played a catalyzing role in precipitating more successful public litigation. Those public actions have fallen well short of curing their respective public health crises, but they have helped to mitigate them and they have delivered a measure of accountability. This story, told well and persuasively by Engstrom and Rabin, is only one thread in the tapestry of their article. Indeed, at least as much of the article is about how and why these crises (the opioid crisis especially) surpass the governance powers of any form of litigation. Responding to these crises requires deploying the entire array of tools available to government officials— taxes, prices, regulatory regimes, and administrative processes, as well as public and private litigation. The article’s overview of how the pieces fit together and fall apart, as well as its overview of how the two crises resemble and differ from one another, are concise and highly instructive. The article is an immensely valuable road map to these two vast public health crises and, even more, to the legal crises that these public health crises have bred.

For tort purposes, the tale that Engstrom and Rabin tell about the relative powerlessness of the private law of torts is the most salient lesson of the article. On their persuasive account, individual tort suits have indirectly served to stimulate effective lawsuits by public actors and thereby purchased some deterrent effect, but “tort law does not, and logically cannot, serve its compensatory function—and, as a procedural-justice matter, surrogate actions leave direct victims on the outside looking in.” (P. 350.) The point here transcends Engstrom and Rabin’s instrumentalist understanding of tort as an institution pursing the twin objectives of deterrence and compensation. Tort scholars committed to thinking in terms of rights, wrongs, and reparation, can recast the failure here at as a failure to hold wrongdoers accountable to their victims for the harm that they have wrongly done. The point is well-taken. So, too, is the point that aggregation and public actions overcame the obstacles that defeated private tort claims by making the harm to the public at large, not the harm to the victims, the issue. There is an important measure of justice in this success. Responsibility to the public at large is a remedy that fits the wrong of inflicting the harm of a massive public health crisis.

There may, however, also be a fault in tort doctrine. Tort doctrine counts addiction as a harm only for purposes of warning obligations; it does not count becoming addicted as a harm in itself. The distance between harm as tort law normally conceives it and addiction is not so very great. Tort law is preoccupied with physical harm. Physical harm, for its part, is understood in a way that is both straightforward and morally significant. It is “the physical impairment of the human body (‘bodily harm’) or of real property or tangible personal property . . . Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.” Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 4 (2010). The morally significant point here is that broken fingers, diseased lungs, disabled legs and so on are harms because they impair our normal powers of agency. We cannot do normal things or lead normal lives when our bodies are broken. But addiction, like physical disability, is also an impairment of agency—and a physical one at that. It robs people of their normal power of control over what they consume; it defeats the normal capacity to avoid using products that you know to be dangerous to your health. It is a harm, and a devastating one.

It is one of the many virtues of Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids that it put squarely on the table the question of whether the time has come for the law of torts to recognize addiction itself, wrongly inflicted, as a form of actionable harm. Until it does so, the law of torts seems to be in the dubious position of expecting jurors to be more morally perceptive than the law that they are bound to apply.

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Cite as: Gregory Keating, Accountability and Addictive Wrongs, JOTWELL (October 26, 2021) (reviewing Nora Engstrom & Robert Rabin, Pursuing Public Health Through Litigation: Lessons from Tobacco and Opioids, 73 Stan. L. Rev. 285 (2021)),