Sunday, February 6, 2022
Professors Robert Rabin and Nora Freeman Engstrom of Stanford Law School have posted to SSRN their article, The Road Not Taken: Perspectives on No-Fault Compensation for Tobacco and Opioid Victims, 70 DePaul L. Rev. 395 (2021). Here is the abstract:
Cigarettes and prescription painkillers have both killed millions of Americans and diminished the lives of tens of millions more. This wreckage has generated waves of prolonged litigation—and, in fact, the evolution of this litigation has been strikingly similar. In both tobacco and in opioids, lawsuits were initially filed by individual victims of defendants’ tortious conduct. But in both instances, one-off suits saw virtually no success, foundering on vast resource disparities and a widespread perception that plaintiffs (smokers on the one hand, “addicts” on the other) were partly or mostly to blame. In time, plaintiffs adapted. States and cities took the reins, and these public actors initiated their own suits. This handoff (from private plaintiffs to public ones) succeeded in many respects. But it relegated individual victims to the sidelines and—crucially—consigned their quest for compensation to the back burner.
In this Essay, we zero in on this compensation question. We explore the fact compensatory claims got pushed aside and note that these claims have generally remained on the periphery. We further observe that, after the tort system left individual victims conspicuously empty-handed, support might have coalesced around the creation of a no-fault compensation scheme for tobacco or opioid-related harms. Yet, discussion of such a scheme has been quiet—and concrete action toward the creation of such a system has been notably non-existent. Why? We chalk this omission up to three stubborn realities. First, the will and capacity to strike a political compromise of this magnitude is lacking. Second, existing no-fault schemes have mixed scorecards, at best. And third, both tobacco and opioid victims pose particular challenges, as a perception that these individuals have contributed to their own harm has undermined any prospect of compensation through a no-fault scheme, just as surely as it dimmed plaintiffs’ prospects for recovery through tort.