By Harold Kim
November 25, 2019 at 5:00 am ET
Trial lawyer ads are everywhere: television, the radio, even on social media. Many ads use blaring headlines, dire warnings, and even government agency logos to claim doctor-prescribed medications could be deadly. Others say that everyday household products cause cancer, without any evidence to back it up. These ads promise big money if consumers sign up to sue.
It’s gotten so bad that the Federal Trade Commission has taken notice. It recently sent letters to at least seven law firms and “lead generators” warning their television ads could deceive viewers into believing that their medications were part of a government recall. The FTC also warned advertisers that they must have competent and reliable scientific evidence to substantiate their claims about a drug’s purported risks.
These ads can be dangerous to consumers, especially older Americans, who might believe the drugs they are taking are unreasonably dangerous. The Food and Drug Administration reported drug lawsuit ads have caused hundreds of patients to stop taking their medications, leading to severe issues such as strokes, blood clots, and even death.
The fact is the more plaintiffs’ lawyers spend on advertising, the more people sue. As a result, companies are overwhelmed with litigation. More than half the civil lawsuits in federal courts today are mass tort cases of one type or another, many generated by television ads designed to scare people into calling the lawyer whose number is scrolling across the bottom of the screen in bold red letters.
Now, plaintiffs’ lawyers are spending millions of dollars on ads that push an unproven scientific theory that glyphosate — an ingredient in Roundup weed killer — causes cancer to drum up clients. The first Roundup ads appeared in November 2015, a few months after a European health organization classified it as a “probable” carcinogen — the same group that claims coffee and bacon causes cancer. The finding was at odds with virtually every other national and international regulator, including the U.S. Environmental Protection Agency, which prohibited cancer warnings on Roundup.
That hasn’t stopped plaintiffs’ lawyers. Soon after a federal judge allowed their shaky claims to proceed in 2018, plaintiffs’ lawyers bumped their spending to over $1 million a month. They increased spending to $1.4 million a month after winning a $289 million jury verdict in August 2018, and by July of this year, they had increased their ad buys to $16.7 million — enough to air 58,000 ads.
See a pattern? Since the ad blitz began, Roundup lawsuits in state and federal courts have increased from less than 2,000 to nearly 20,000. Plaintiffs’ lawyers have won several more massive jury verdicts in the meantime, and they hope the growing wave of lawsuits will give them leverage to negotiate a big settlement, including hundreds of millions of dollars in fees.
We’ve seen this play out repeatedly with mass torts. Even when the plaintiffs’ lawyers appear to lose, they win. They launched a similar ad blitz against Xarelto, for example, 21 months after the FDA approved the blood-thinning drug in 2011. Ad spending peaked at an estimated $6.5 million in October 2014 as lawyers told patients the medicine was potentially deadly. The ads slowed down after defendants won a series of trials in 2017, but the lawyers still negotiated a $775 million settlement earlier this year, likely rewarding them with at least $200 million in fees.
There are several reasons to be worried about this trend. Plaintiffs’ lawyers seem to concentrate their advertising in places where important jury trials are pending, and sometimes they even showcase how much juries in other parts of the country have awarded in similar cases. It’s perilously close to jury tampering since studies have shown jurors can be influenced by suggestions, especially when it comes to nebulous non-economic awards like pain and suffering and punitive damages.
The FTC isn’t alone in its concerns about lawsuit ads. This year, Tennessee and Texas went further, banning trial lawyer ads that use government logos and terms like “medical alert,” “health alert,” or suggest a drug recall when there wasn’t one. These laws are an essential step toward curbing the explosion in unnecessary and sometimes dangerous lawyer ads.
Trolling for clients on TV works for lawyers, but it causes collateral damage to everybody else.
Harold Kim is the chief operating officer for the U.S. Chamber Institute for Legal Reform.
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