Behind the Blue: Richard Ausness (Tackling Legal Issues of the Opioid Crisis)

GROUP: (SINGING) On, on, U of K. We are right for the fight today. Hold that ball and hit that line. Every Wildcat star will shine. We'll fight, fight, fight for the blue-- 

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ANNOUNCER: From the campus of the University of Kentucky, you're listening to Behind the Blue. 

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KODY KISER: Educated at the University of Florida and Yale University, Richard Ausness joined the faculty of the University of Kentucky College of Law 46 years ago in 1973. Ausness is the Stites and Harbison Professor of Law in the college and is still very active teaching classes and doing legal research. Lately, Ausness is often contacted by news media outlets across the nation for his expertise regarding lawsuits stemming from the opioid addiction crisis. 

I'm Kody Kiser with UK PR and marketing. On this week's episode of Behind the Blue, UK PR's Carl Nathe visits with Ausness to talk about his career at UK and his legal scholarship, including his work dealing with this very serious societal issue. 

CARL NATHE: Welcome in to the Behind the Blue podcast. And our guest on this edition is Richard Ausness. And Richard is a longtime professor at the University of Kentucky College of Law. First of all, welcome to the program. 

RICHARD AUSNESS: Thank you. 

CARL NATHE: Now in terms of-- I always like to find out what makes people tick, where you grew up, where you were educated, and so forth. So where was your original hometown? Where did you come into this world as it were? 

RICHARD AUSNESS: Oakland, California. My parents were both in the Navy during World War II. So I was born at the Naval hospital there. 

CARL NATHE: Wow, and Oakland, California, to Lexington, Kentucky, but there's some steps in between. So tell us did you move around when they came? 

RICHARD AUSNESS: We did. My mother retired after the war. But my father stayed in the service. And as is typical of military, we were stationed at various places, one of which was Hawaii, which was nice. Other places, not so good. But we went to about five or six places. 

CARL NATHE: And where did you end up graduating from high school? 

RICHARD AUSNESS: Jesuit High School in New Orleans, Louisiana. 

CARL NATHE: OK, and then college came next. 

RICHARD AUSNESS: The University of Florida, and I was an English major and graduated in 1966 and then went to law school there as well. 

CARL NATHE: OK, and so that was another three years. 

RICHARD AUSNESS: Well, in my case, it was two years. They had what was called the trimester system. So you could finish early. And that was true of college too. So I did the whole thing in five years. 

CARL NATHE: OK, where did you get your interest in going to law school? When did that first creep in? 

RICHARD AUSNESS: Well, it's hard to say. I was an English major. So of course, you can't really do anything with that. You have to find some-- 

CARL NATHE: Well, you could-- you can teach. 

RICHARD AUSNESS: Some profession. Well, yes, I suppose so. So at any rate, I thought law might be interesting. And I enjoyed it. 

CARL NATHE: Now when you come out of law school, and obviously, when you're in law school, there's other things you do to gain experience, right? While you're going to school, you're sometimes-- or right out of school, you're clerking for somebody, or that sort of thing? 

RICHARD AUSNESS: That's not uncommon. Actually, in my case, I didn't do that. I taught college English when I was in law school. And I was also a research assistant for the dean. And they hired me right out of law school. I was 23 when I started. 

CARL NATHE: And that was at Florida? 

RICHARD AUSNESS: At the University of Florida, yes. 

CARL NATHE: Excellent. Well, that's a pretty good place to be. What about your career there? How long were you there? 

RICHARD AUSNESS: I was there for five years and left as an associate professor. And I enjoyed it very much. It's a great school. And I like the people there. But Kentucky had certain attractions, such as a semester system. 

By that time, Florida had gone to the quarter system, which meant we graded-- well, we gave eight exams a year and had to grade them. And so that wasn't much fun. A semester works much better. And I liked Lexington. It was a much smaller town back then. And the law school was a very congenial place. 

CARL NATHE: So you arrived on campus in the fall of? 

RICHARD AUSNESS: 1973. 

CARL NATHE: 1973, so that's 46 years and counting. 

RICHARD AUSNESS: Yes, indeed. 

CARL NATHE: Well, that's terrific. Well, you wear it well. I might say that. It's radio. We can't see you. But hopefully, there'll be a little picture on the website. But Richard Ausness is our guest. And he's a professor of law here at the University of Kentucky College of Law and has been since 1973. Well, that brings us to a little bit of the how and why you got here to the University of Kentucky. What are the courses that you've taught here in the law school over the years? 

RICHARD AUSNESS: Oh, my goodness-- legal history, torts, water law, natural resources, trust and estates, property-- and I'm sure I'm leaving something out-- energy law. That's not unusual for people like us to move around from course to course. 

CARL NATHE: Very good. Well, in addition to being in the classroom, I know as a professor, you're also a counselor, a mentor to students. That's got to be one of the-- it's probably one of the parts of the job that takes a lot of time, but it's probably very rewarding. 

RICHARD AUSNESS: Well actually, in my case, I'm so old that the students really don't want to talk to me very much. The younger, more hip members of our faculty get the lion's share of that sort of work. I get a straggler come in every now and then. But that's not a large part of what I do. But I enjoy it when I do it. 

CARL NATHE: What about-- and one of the things we talking about, even if you teach the same courses through the years, or if you've obviously taught a number of them, but you still have to be very current in terms of what's going on in Kentucky and what's going on around the country and the world. And that's one of the things that keeps you, I guess, keeps you coming back. You obviously enjoy it, or you wouldn't be doing it this long. 

RICHARD AUSNESS: Well, I do like to do research. We're expected to do a fair amount of research at the law school. And I've always enjoyed it. Over the years, I've published 70 articles, mostly written just by myself and not co-authored, and two books. So and I have several of them I'm working on currently. 

CARL NATHE: Very good. Now the books that you have worked on, are those books that could be used at law schools, or are they on specific-- 

RICHARD AUSNESS: Well, one of them is called the Model Water Code. And it was, as the name implies, a sort of a statute that states could adopt. And Florida did adopt it in 1972. And a few other states adopted parts of it. The second book, which was published in 1979, was Florida Water Law. And it was a treatise on, as I mentioned, water law in Florida. 

CARL NATHE: Well, environmental-- you mentioned natural resources and water law. Environmental regulations are a necessary but a very important part for anybody that's going to be doing anything on any kind of a piece of property. You've got to know what the law allows and what it doesn't allow. 

RICHARD AUSNESS: Well, that's certainly true. And actually, I did teach environmental law for a few years. The way it's taught in law school is it's more of an administrative law course than anything else. There are some important statutes, the water pollution statute, the air pollution statute, and a number of others. But they're very technical. And so it isn't what people sometimes think it is. From our perspective, it's more like the tax code. 

CARL NATHE: In addition to teaching, in addition to writing, doing research, you also are a part of several committees within the College of Law as a veteran faculty member. You're asked to participate in those. 

RICHARD AUSNESS: Two of my favorites, or at least two that I'm on frequently, would be the admissions committee and-- which is time-consuming, but important, and the promotion and tenure committee. On occasion, I've been on the appointments committee as well and then other less important committees.

CARL NATHE: Very good. Now one of the things-- the College of Law's original building, or the building that you've been in original, roots of it, I think it opened in 1963. I would be remiss. Now it's 56 years later. But in effect, you have a brand new building. And how is that working out? 

RICHARD AUSNESS: Well, I think it's working out pretty well. We just moved in a couple of weeks ago. And to be honest, I am not totally familiar with the layout just yet. I've yet to make it to the third floor, for example. But it'll be there when I need to see it. But the offices are nice. It's much larger than the old building, which is necessary to accommodate all the administrators we've hired in the last 10 years or so. But it's a nice building. Everything's new and fresh. And I think we're going to enjoy it. 

CARL NATHE: Very good. Now the University of Kentucky College of Law Professor Richard Ausness is our guest on this edition of the Behind the Blue podcast. Want to get into some things that you've written and researched about recently. And Danielle Donham, who is our beat person, if you will, for the College of Law has helped to design a few questions for you that I'm going to tap into. 

One of those is something that is really front and center in the news and on people's minds. It's affected and devastated many not only individuals but families. And that is the opioid crisis. It seems to be impacting more and more. What role does law play in the opioid crisis? 

RICHARD AUSNESS: Well, it, by default, has played a very important role. That is to say a number of lawsuits have been filed, over 2,000 now, by state and local governments against the drug companies. And they're moving forward sporadically. And that in turn, I think, has generated public interest in what's going on and may ultimately lead to a legislative response, which I think is what's going to be necessary to deal with the problem in a comprehensive manner. 

CARL NATHE: Well, we have we have regulations and regulators. And somehow, when some of these pain medications came out, their goal is noble-- to make patients more comfortable. But they've quickly-- some of them become addictive. Is that what's at the crux of the problem? 

RICHARD AUSNESS: Yes, and at least the narrative that is popular nowadays is that the drug companies promoted opioids for inappropriate uses, particularly the treatment of chronic pain. On the other hand, it was approved for that purpose by the FDA. And so there's sort of a blame game going on. The drug companies say, we sold a legal product. There were warnings about addiction. And we can't help it if doctors overprescribed, or patients abused it. 

On the other hand, the plaintiffs respond by saying, well, you overpromoted it. You lied about it. And people would not have become addicted if you'd been more honest about the nature of the product. 

CARL NATHE: One of the ones that's been in the news-- believe it's the first case against an opioid manufacturer involved Johnson & Johnson-- reached trial recently, as opposed to being settled out of court. And the judge and the jury, there's been a ruling in the case that found Johnson & Johnson responsible for $572 million in damages for harm caused to the people of the state of Oklahoma. Do you think this qualifies as landmark status, this outcome of the case? 

RICHARD AUSNESS: I wouldn't call it a landmark case just yet. It is a trial-- state trial court decision. There are a couple of cases from other states at that level that have gone the other way, one in Connecticut and one in North Dakota. So it's important. 

It may have some effect on settlement negotiations at some point, but it's going to be appealed at least to one appellate court level and possibly beyond that. So we're not really going to know whether the plaintiffs have won this case until it goes through the appeal process. 

CARL NATHE: So until it goes through the appeal, we really can't call it a precedent officially. 

RICHARD AUSNESS: That's right. Well, wouldn't be a precedent anyway. That is to say, it's not binding on other courts. It's just binding on Oklahoma. So other courts are perfectly free to go a different-- in a different direction. And indeed, one of the things about that case that's perhaps overlooked is that Oklahoma-- the theory was public nuisance. 

And Oklahoma has a statutory definition of public nuisance that's quite broad and unlike that of most other states. So most states have a somewhat narrower definition. And so cases on the same facts could go be decided differently because of the nature of the public nuisance law in that state. 

CARL NATHE: How did you first get interested in researching more about this whole opioid crisis? 

RICHARD AUSNESS: Well, it's a long story. The short version is that I wrote a couple of articles about drug company liability for marketing back around 2002. And nothing much happened. And then in 2013, I was invited to participate in a seminar-- or I'm sorry, a symposium at the West Virginia law school, and part of that process typically is to write an article. 

I duly wrote an article. It was about opioid litigation, which was just starting back then. And so I wrote an article about that. Never made it to West Virginia. Got caught in a snowstorm and didn't get past Philadelphia. But I did write the article. And it was published. 

And then a couple of years went by, and I got a call from The Atlantic magazine. And they wanted-- they were doing a story on opioids and interviewed me. And then one thing led to another. And since then, I've probably get half a dozen calls a week from reporters and other broadcasters. So I kind of backed into it, but it's turned out to be fascinating. 

There are many aspects to it. I look at it from a legal point of view. In other words, I'm not a public health expert, or anything like that. I don't have any solutions to the opioid crisis. What I'm doing is saying these-- that the liability theories that are being proposed by plaintiffs are-- some of them are better than others. Some of them are more persuasive than others. And defendants have things they can say, too, in response. So I'm trying to be as objective about it as I can and not take sides. 

CARL NATHE: Which is obviously, that's part of why there's academics that study this in College of Law and people like yourself that can bring an objective look at it. 

RICHARD AUSNESS: Well, yes, that unfortunately-- I shouldn't say unfortunately. But that isn't always the case. There was a period where advocacy research was considered acceptable and particularly in the environmental law area, but in other areas too. So some people who write have opinions over perspectives. And that's fine, as long as they're honest about them. But I try to be a little more neutral. 

CARL NATHE: Even though this problem, I wouldn't say it developed into a crisis, the opioid crisis, which I think it's fair to call it a crisis, it didn't happen overnight. Yet, in compared to some other things, it almost seems like overnight. But this is going to be in the news and part of our lives, this whole discussion, I would think for many years to come. It's not going to have an overnight solution. 

RICHARD AUSNESS: I think you're right. And one of the things that I wrote about in that first article was that at that time, which was in the early 2000s, there had been a number of cases brought by individuals who were addicted, or their families, seeking damages. And they almost always lost. And I think the reason was that courts felt that they deserved what they got. 

So one of the reasons that the cities and states got into the fray was because they didn't have that baggage. They didn't abuse drugs like the individual defendants, sadly, some of them had. So that second wave of litigation started with Mississippi about five years ago, five, six years ago now. And of course, it has snowballed since then. 

CARL NATHE: Well, you, obviously, keep your eye, a close eye, on what's going on in individual states, what the United States laws around the country are. But is this problem of opioids and the legal issues surrounding it-- surrounding this issue, is this just limited to the United States? Or is this happening in other parts of the world as well? 

RICHARD AUSNESS: Well, I don't think it's as serious a problem and partly because, and at least in Europe, they're not as concerned about preventing pain at all costs. And of course, they have socialized medicine in most of those countries. And so they just don't hand out pills willy-nilly. So they have drug problems, heroin in particular and things like that. But so far, prescription opioids haven't, I don't think, been as serious a problem there as it is in this country. 

CARL NATHE: One of the things about this crisis which goes beyond probably your research, but I want to ask the question anyway, is when someone tragically dies as a result of opioid addiction and abuse, we think in terms-- sometimes, people think in terms of, well, that impacted that particular person and that particular person's immediate family. 

But when the circles or the ripples go out, I saw a stat recently that said when this happens, no, it's more than-- if you think about it, between work relationships, between social relationships, you start getting into the more than 100 people that are impacted. I mean, it's a huge issue. It's an important-- unfortunately, we've got to come to grips that this is right in our midst. 

RICHARD AUSNESS: Well, yeah, I mean, it is a problem. And there are many aspects to it as you point out. For example, when we talk about, well, there's unemployment in certain parts of the state, or certain parts of the country. And it's not only that there are no jobs, but it's the people can't pass the drug tests. And so they can't get those jobs, even if they're available. So that's one aspect. The other is that there's a lot of crime that's associated with drugs. 

Now I will say that it isn't just prescription opioids that are the cause. I mean, there are meth labs out there. There's heroin. There's fentanyl, or other types of street drugs. So there was a drug addiction problem, though not on this scale, way before opioids became-- prescription opioids became popular. And I suspect if we were somehow to eliminate prescription opioids from the scene, you'd still have drug addiction. 

So it's a complex problem. And there's no simple solution. And that's why making the drug companies pay for opioid treatment-- opioid addiction treatment isn't going to totally solve the problem. It obviously would help, but it's not a complete solution to the problem. 

CARL NATHE: In terms of the legalities, but also in terms of we're very proud of the United States-- at least, most people are-- realize that we've got a pretty good document that we've lived by for a couple hundred years. I'm speaking of the United States Constitution. We are very aware people like you study the law. 

But this is something that you touched on that legislation is probably going to have to be passed in order to really get a handle on this. And yet, legislation has to be done within-- laws have to be constitutional. Seems to me this is just complex and complicated with all kinds of things. 

RICHARD AUSNESS: Yes, I mean, clearly, legislation has a role to play in all of this, as does regulation by the FDA and the DEA and other federal agencies, but it requires a coordinated effort. You can't just do a one shot approach. For example, the opioid problem, of course, was very serious 10 or 15 years ago. 

And one of the things that the federal government did, not so much the state, was prosecute doctors who were overprescribing and shut down the pill mills. And they were very successful in doing that. But the addicts just went to heroin. So they just changed the nature of the problem without really solving the problem. 

CARL NATHE: And if I might interject that heroin, as a result, I believe I've read in a couple of different places where one of the reasons that heroin was readily available when they shut down, the price on heroin had gone way down while people were using other means of opioids. 

RICHARD AUSNESS: Yes, that's certainly true. And of course, the irony of all of that is that prescription drugs are-- the quality control is very good. They're addictive, but they're fairly pure. Heroin, you don't know what you're getting. It's a pig in a poke. 

So perhaps you could make the case-- I'm not-- but perhaps you could make the case that if you're going to have widespread addiction, and you can't do anything about it, that maybe prescription drugs are a better form of addiction than street drugs. That's a terrible choice to have to make. 

CARL NATHE: Right. Richard Ausness, who's a longtime professor in the College of Law here at the University of Kentucky, is our guest on the Behind the Blue podcast. What about in terms-- let's bring it back to your teaching and in the classroom. Can this, what's going on now, how does this relate to what you might bring-- you have to keep up with litigation that's going on. Do you bring this forth to your students for-- 

RICHARD AUSNESS: Not a lot. I do, of course, I teach products liability. And I view this in through that lens. And one of the things I try to show my students is that litigation has a role to play. But it's not the only way to deal with the problem, or it's only a small component. I think sometimes, plaintiffs' lawyers in particular sort of overstate the case that we're going to put the drug companies out of business, or we're going to do this, we're going to do that through litigation. 

And I think that's perhaps too ambitious. On the other hand, as lawyers, they are going to be involved in these sorts of things, or some of them will be. And it's good to know what the law is and what the rules are. 

CARL NATHE: It seems like-- one more question that I have. And then I'll give you a chance to add anything you'd like. And I appreciate your time for this discussion, Richard Ausness, Professor of Law here at the UK College of Law. That is that one of the things I've noticed with this whole opioid crisis, drug addiction and drug problems in this country certainly are nothing new. 

But it seemed like before prescription painkillers and addiction as a result of that came to the fore in the last couple of decades that a lot of people looked at heroin addiction, well, that's happening in another part of town. That's happening to another socioeconomic class of people. Whether that's fair or accurate, I'm just saying there were people that said, that's somebody else's. That's not going to get my kids. 

Here, I live in Lexington, Kentucky for 34 years. And I've noticed-- or have not noticed. We've been impacted by my kids, thank god, no, three adult children, but other people, adult children, young adult children in their 20s and 30s that are from families that they didn't come from a poor background, that didn't come from where it was around them all the time and so forth, and end up tragic stories of death. 

And it seems to me that has brought this to another level of attention because it isn't just-- which we should care about all the people in our society. But frankly, it tends to be when it becomes something that affects the greater populace, it gets more attention. 

RICHARD AUSNESS: I think that's exactly right. I think that drug use 20 or 30 years ago was-- I wouldn't say confined to a particular socioeconomic group but largely. And many people like myself never knew an addict. And so it was an abstract problem that wasn't personal. 

But as you point out, prescription drug abuse is far more widespread. And a lot of people that we know got addicted. They were treated for pain and became addicted and now are fighting it. So it does impact people far more broadly I think than the drug addiction of the past 

CARL NATHE: Guess we bring this to a close. We're coming near the end of our allotted time. But I want to ask you this before I give you a chance to add anything else. But that is the fact that one of the fascinating things as I talk to you and listen is as a law professor, yeah, there's some things that stay the same, some courses that maybe the basics that you teach stay the same.

But the law is a living, breathing document. The law is not a book on the shelf, and everything that you ever need to know is in that big volume on the shelf, or series of volumes. That keeps you fresh, too, doesn't it? 

RICHARD AUSNESS: Well, it does. I teach a variety of courses, but several of them are fairly traditional trust and estates and property. They don't change much, but they change some. And so I try to point that out that some of these rules have been around for a long time. And they've stood the test of time. And they'll probably be around for much longer. 

But things do change. Landlord-tenant is one area where the law has changed dramatically in the last 20 or 25 years. And actually even in trust and estates, things are changing. New devices are being created by trust and estates' lawyers and are being tested. So, though, there's always some progress, if you want to call it that, or motion at least going on within different areas of the law. And of course, my job is to keep an eye on it and comment on it. So that's very interesting and fun to do. 

CARL NATHE: My very last thing-- if you had it to do all over again, would you choose to be the career you've had as a legal scholar and law professor? 

RICHARD AUSNESS: There is no better job in the world. I mean, I'm had a wonderful time and hope to keep on doing it for at least a little while. And it is great. Being an academic, especially in my area, you can do pretty much anything you want. I have written about all sorts of subjects. 

And we don't normally get involved with grant work, which is also kind of nice. You're pretty much free to write about anything you like. And I learn a lot by doing that sort of thing. I get into areas that I knew absolutely nothing about and didn't intend to know anything about. But it didn't work out that way. So I'm a better person for it, I guess. 

CARL NATHE: Anything else that I haven't touched upon? I know we've had a kind of a broad ranging-- and our focus a lot was on the litigation surrounding the opioid crisis. But anything you'd like to add or? 

RICHARD AUSNESS: Well, simply that I think people contemplating graduate work of some sort certainly ought to look at law. There are many opportunities that are not necessarily working in a law firm. You learn important skills in law school that you can apply elsewhere. I have to say, though, that my short career as an English teacher helped as well. It's always good to be able to write and to know the rules of grammar and style. 

So one thing I always have tried to be is sort of interested in lots of different things. And I get to apply many of those different disciplines to my work. But sometimes, it's just for my own good. 

CARL NATHE: Well, Richard Ausness, it's been a pleasure, Professor of Law here at the University of Kentucky College of Law since 1973. And well, if you were sitting across from him as I am, you'd guess him to be more like maybe he's in his late 50s or so. But if you do the math, that's not quite right because he had all that training beforehand. But he's young at heart and still going at it strong. And thank you for being our guest. 

RICHARD AUSNESS: Thank you very much. I enjoyed it. 

CARL NATHE: All right, and we will see you next time on the Behind the Blue podcast. 

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ANNOUNCER: Thank you for joining us on this edition of Behind the Blue. For more information about this episode or any other episode, visit us online at uky.edu/behindtheblue. You can send questions or comments via email to behindtheblue@uky.edu or tweet your questions using hashtag #BehindtheBlue. Behind the Blue is a joint production of University of Kentucky Public Relations and Marketing and UK HealthCare. 

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