Mass-Tort Advertising Does Not Prioritize Our Nation or Our Health
COMMENTARY

Turn on the television today and chances are you’ll be confronted with an ad such as this:
“Have you used Mediquell XR and experienced symptoms of Periodic Parenchymal Paralysis? You may be entitled to compensation! Call 1-800-BAD-DRUG today!”
Don’t worry, “Mediquell XR” medication and “Periodic Parenchymal Paralysis” don’t even exist. But replace them with any medicine, medical device or manufactured product, from blood thinners to ear plugs, and then add in any disease with even a slight causal link to the product and these ads will play over and over, day and night, on our televisions, radios, billboards and social media.
Mass-tort attorneys spent almost $7 billion in five years on ads. In 2021 alone, attorneys spent almost $1 billion on 15 million ads — 10 times more than all ads by pizza parlors in the entire U.S.! This spending is increasing by about 10% a year and the ads are frequently run not by attorneys but by aggregators, who collect names and contact information and sell them to law firms.
The ads are extraordinarily effective. In 2022, there were 766,145 mass-tort claims filed, representing half of all civil litigation in the entire United States.
How is it possible that obscure medications, often offbeat products and arcane diseases warrant such an onslaught of advertising dollars? The answer is straightforward. The mass-tort litigation bar has created a money machine that converts those ad dollars into huge profits. Unfortunately, in doing so, the mass-tort industry damages consumers and businesses, frequently relies on sketchy science and imposes large negative costs on society.
Exactly how large is that cost? The Taxpayers Protection Alliance concluded this year that:
“The unchecked abuses of the tort system grew at an annual rate of 6% year-over-year between 2016 and 2020. That breaks down to a ‘tort tax’ of roughly $1,300 per year paid by every person in America.”
The Institute for Legal Reform, meanwhile, has estimated the annual cost to be even higher at $3,621 per American household per year.
These ads carry a direct individual cost too. In 2019, the U.S. Food and Drug Administration published a study of the human impact of just one set of ads about blood thinners. According to analysis from the American Tort Reform Association:
“The report found 66 incidents of adverse events following patients discontinuing the use of blood thinner medication (Pradaxa, Xarelto, Eliquis or Savaysa) after viewing a lawyer advertisement. …Thirty-three [of these] patients experienced a stroke, 24 experienced another serious injury, and seven people died.”
Further ATRA analysis found that human cost also likely extends far beyond just blood thinners:
“A Public Opinion Strategies survey found that 72% of Americans saw ads by law firms about pharmaceutical lawsuits in 2016 … [and] that one-in-four people who saw one of these ads concerning a medicine they take, say they would immediately stop taking the medicine without consulting their doctor.”
Because of the huge financial incentives to push this type of litigation out, it frequently relies on sketchy or junk science. For instance, a 2015 Zofran birth defects ad was released with the warning that the anti-nausea medication causes severe birth defects to newborns. Viewers were advised to seek legal advice and financial compensation. However, a study discovered that the evidence supporting these birth defect claims was insufficient.
The profits from mass-tort litigation are fueled by a financial ecosystem that is shockingly complex and involves law firms, financiers such as hedge funds and aggregators.
The law firms are alert to any study that suggests some product might be related to an injury. The race is then on to sign as many clients as possible and be the first law firm to file litigation because there are many other mass-tort firms going for the same bucket of money. The firms all sign their clients to “contingency fee” arrangements, where the attorney only gets paid if they win damages for the client.
That is where the aggregators and financiers come in. Many law firms don’t pay for the ads or for buying the client lists from aggregators and instead look to investors to support such efforts through third-party litigation funding arrangements. Such mass-tort financing, according to the Trial Lawyer Playbook Report, “has burgeoned into a multibillion-dollar industry. Hedge funds and private equity entities now play a pivotal role by furnishing substantial capital to plaintiffs’ law firms, thereby securing a share of forthcoming settlements.”
The reason for signing hundreds or even thousands of clients is to make the potential downside of defending the case so great, and the negative publicity so damaging, that corporate defendants will settle the case early, regardless of the merits. Early settlement is key to the money machine. The lawyers, aggregators and financiers make big dollars without having to invest large amounts in actually proving their case at trial.
The American mass-tort industry, mass-tort advertising and mass-tort financing are out of control.
Reform by individual states helps to make a difference. But because the mass-tort industry is an extremely powerful lobby, congressional action is likely necessary. Steps must be taken to rein in the aggressive advertising campaigns, financing structures and attorneys’ fees that underpin mass-tort cases as well as to bring more transparency and disclosure to third-party litigation funding arrangements.
The onslaught of mass-torts will be quelled only by changing the financial incentives to bring them.
Frank Francone is a California attorney admitted to practice before the U.S. Supreme Court. He led major civil litigation at the trial and appellate levels for 25 years. Until recently, he served as a policy fellow in law and politics at the Centennial Institute. He can be reached on LinkedIn.
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