We have been riding the Philly subway for years, but only recently realized how much the ads on the car walls have changed. Not so long ago there were lots of ads for vocational schools, inducing today’s un- or underemployed to become tomorrow’s truck drivers and beauticians. But nowadays at least three quarters of the ads are from plaintiff lawyers hawking their ability to wring cash out of slip-and-falls or the latest mass tort. Mass transit advertising space that formerly advised riders to get skills is now dedicated to pleas to get paid. The same is true for daytime television advertising. Perhaps we are not alone in seeing this evolution as further proof, along with Keeping up with the Kardashians and the ascendancy of kale salad, that our culture is headed to Hell in a handbasket.
You won’t be surprised to hear defendants and their lawyers bemoan plaintiff lawyer advertising. But we are not alone. Recently, we heard a MDL judge express frustration about how plaintiff lawyer advertising was a blatant attempt to extend the tail of an over-mature mass tort. Some plaintiff lawyer advertising is naked poaching of other plaintiff lawyer inventories – e.g., why pay a 40% contingency fee if you can pay only 20%? But the most obvious aim and effect of such advertising is stirring up litigation. What might not be so obvious is the extent to which plaintiff lawyer adverting causes adverse health outcomes. A recent law review article looks into this issue and it is well worth reading. The article is by Elizabeth Tippett, a professor at the University of Oregon School of Law. The title is “Medical Advice from Lawyers: A Content Analysis of Advertising for Drug Injury Lawsuits,” 41 Am. J. L. & Med. 7 (2015).
Tippett and her team looked at plaintiff lawyer advertising in Boston and Atlanta where the purpose of the ads was to recruit consumers for lawsuits against drug manufacturers. About half the lawyers behind the advertising actually litigated cases, while the other half appeared to be referral or settlement mills. Many of the ads obscured the fact, or at least delayed disclosure, that the ads were taken out by lawyers. Some ads did a snazzy job of looking like public service announcements. Reference to the FDA was often highlighted. (“FDA Warning” “Consumer Alert”). The ads must work in terms of recruiting clients, given that there are so many of them. Regulation by the relevant state bar appears to be de minimis. The issue is whether such advertising affects consumer medical decisions.
There is a rich twist at work here. Plaintiff lawyers harp on allegations that pharmaceutical direct-to-consumer advertising distorts patient risk perceptions and is so pernicious as to call off the learned intermediary rule and open the door for massive liability. But it turns out that plaintiff lawyer advertising might well have a more profound effect on risk perceptions. At least if a manufacturer’s ad inspires a patient to seek out a specific medicine, that patient must go through a doctor — a learned intermediary — who will make an informed medical decision. By contrast, if a plaintiff lawyer ad terrifies a consumer into avoiding or ceasing a treatment, that consumer can make a very bad decision without ever consulting a doctor. Few of the plaintiff lawyer ads advise consumers to talk with their doctors, and when they do it is typically in the fine print. Much better to talk to a lawyer, right?
And it turns out that plaintiff lawyer advertising really does distort risks. Adverse events are described in the most alarming language: “fatal,” “life-threatening,” “disfiguring.” There is seldom any reference to the absolute risk rate, which is usually quite low. There is usually no reference to the relative risk or background risk rate. There is usually no reference to relevant subpopulations (e.g., long-term users). If a product recall is specific to one manufacturer, the plaintiff lawyer ad will likely elide past that fact and pretend that any problem is industry-wide. There is almost never a reference to the benefits of the drug. Forget about fair balance.
And forget about everything the FDA requires to be included in manufacturer DTC advertising.
As is typical with law review articles, the portion describing the issue is more interesting and useful than the portion proposing a solution. State bars are skittish about regulating the advertising of their members, and there is first amendment jurisprudence supporting such skittishness. Still, the first amendment should not prevent the powers that be from reeling in speech that is as ridiculously misleading as so many of these plaintiff lawyer ads seem to be. Model Rule 7.2 says that lawyer ads omitting material facts are misleading and forbidden.
The article is fascinating. It has the marvelous effect of confirming our prejudices and adding firepower to our arguments. On this day before Thanksgiving, this thoughtful law review article gives us yet another reason for gratitude.