President Barack Obama shattered some old paradigms for how to finance a campaign. But he and his Democratic colleagues stuck to the script when it comes to leaning on trial lawyers for campaign cash.
During this last election season, federal Democratic candidates collected more than $136 million from lawyers, the most from any sector of the economy. Trial lawyers have abused the legal system for years, particularly when it comes to medical tort.
The Supreme Court, though, has an opportunity to counteract a trial-lawyer takeover of Capitol Hill. The court just heard oral arguments in Wyeth v. Levine, a case that could mitigate many of the legal risks brought on by trial-lawyer abuses and bring some common sense back to pharmaceutical drug regulations.
Under the current legal framework, it’s open season for tort lawyers as soon as a drug hits pharmacy shelves. Even if the Food and Drug Administration determines that a drug is safe, it takes just one verdict from one jury with no medical expertise to get that drug pulled off the market. And if a lawyer loses a drug liability lawsuit in one state, he or she can just sue the manufacturer again in a different one. Each of the 50 states could, in theory, adopt different rules governing the same drug.
Tort attacks have also forced pharmaceutical firms to take perfectly safe and effective drugs off the market.
Case in point: the recent history of antidepressants. Due to a flurry of lawsuits blaming antidepressants for teen suicides, the FDA adopted an ominous “black box” warning on some antidepressants. The move was opposed by both the American Medical Association and the American Psychiatric Association.
After the warning was implemented, antidepressant prescriptions for teenagers declined 17%. Meanwhile, youth suicide rates increased by 14% — the biggest jump on record.
The Supreme Court could quell these legal abuses by ruling in favor of federal preemption of state rules when it comes to drug-safety regulations in the upcoming Wyeth case. Preemption essentially says that when federal and state law come into conflict, federal law supersedes. In other words, if a pharmaceutical company follows FDA safety regulations for its drugs’ chemical makeup and labeling, it should be protected from frivolous tort suits at the state level.
Michigan state law, which currently limits such lawsuits against pharmaceutical firms whose products have FDA approval, would be invalidated if the court rules against preemption.
Lawsuits in lower courts would peter out, driving down medical costs and freeing doctors to offer the best treatment available.
Trial lawyers may think they’ve got it made with the Democrats taking over the White House and Congress. The outcome of Wyeth will test whether they’re right.
SALLY C. PIPES is president and CEO of the Pacific Research Institute, a public policy think tank in San Francisco. She is also author of “The Top Ten Myths of American Health Care.” Write her at [email protected].