Mass-tort litigation in the U.S. fuels advertising spending to the tune of $7 billion every five years, promoting a host of often tenuous scientific causations between diseases and medical devices or products, critics say.
The impact of such legal advertising was detailed in a recent opinion article by a California attorney, Frank Francone, who said that legal ad spending has been increasing by about 10% annually. In addition, the ads are often funded by aggregators, who sell the names of potential clients who respond to the ads to law firms, Francone said.
“The ads are extraordinarily effective,” he said in the article. “In 2022, there were 766,145 mass-tort claims filed, representing half of all civil litigation in the entire United States.”
The ads linking arcane diseases with medical devices or products, such as ear plugs or heartburn medication, are often based on inconclusive or junk science and can have long-standing effects on consumer views, according to Francone.
“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,” he said.
The pervasive advertising by those involved with mass litigation against drug makers and other defendants is required to gain hundreds or thousands of potential plaintiffs to take part in the lawsuits, according to Francone. In turn, the cost of defending against such mass torts is so high, and the resulting negative publicity so detrimental, that companies are incentivized to settle such cases early even if the merits of the cases are questionable, he said.
In this way, third-party litigation funders and aggregators maximize their profits since additional funds don’t need to be devoted to expert witnesses and further court costs, critics of the current system say.
David McGarry, policy analyst for the Taxpayers Protection Alliance, agrees that structural problems in the legal system encourage frivolous litigation and unserious cases.
“This system of incentives prompts unscrupulous actors to work in their own economic self-interest and to recruit unharmed plaintiffs in myriad ways, including through mass advertising campaigns,” McGarry said in an email to the Southern California Record. “The pattern is quite predictable. If a system rewards a certain behavior – whether good or bad – more people will engage in that behavior.”
But he added that ad spending is more of a symptom rather than a driver of bad actors.
“With respect to advertising, specifically, limitations on speech invite First Amendment challenges,” McGarry said. “Besides, the foundational problem is not advertising per se. It is the system that makes such advertising a profitable use of time and resources."
Francone suggested that federal action might be needed to bring more transparency to the litigation-financing process and rein in aggressive legal advertising campaigns, which can also dissuade patients from taking essential medicines that prevent injury and even death.
The U.S. Chamber of Commerce’s Institute for Legal Reform, which publishes The Record, points out that states such as Florida have barred legal ads from using official-looking logos suggesting government approval of the ads’ content. In Florida, legal-services advertisers also need written consent of respondents before their personal information can be turned over to third parties.
The Texas Supreme Court, meanwhile, has required that law firms’ ads disclose only the damages amounts that their clients have received, rather than jury awards that may be reduced or overturned on appeal.