Justinian Lane

Nice op-ed on FDA Preemption

As regular readers know, the Supreme Court will hear a case this term about FDA Preemption.  A ruling for the pharmaceutical industry is a “get out of jail free card” for manufacturers who sell dangerous prescription drugs.

IN THE PAST 11 years, drug companies have had to pull 23 unsafe drugs from the market, even though all had won approval from the US Food and Drug Administration. In spite of this shoddy record of oversight, the companies want to be protected from lawsuits by victimized patients or their survivors on the grounds that FDA approval should protect them from liability. A Supreme Court that has proven only too willing to do the bidding of industry could give the companies what they are looking for.

If it does, it will be doing just what conservatives often accuse judges of doing - legislating from the bench. "This is a radical restructuring of the American civil justice system," according to Georgetown law professor David Vladeck.

Source: No haven for dangerous drugs - The Boston Globe

I’ve always found it irritating that on the one hand, conservatives are generally very skeptical of the ability of government to do anything well, but on the other hand, they act as if the FDA is infallible. 

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Posted at 10:41 AM, Sep 29, 2008 in
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I would like to see the use of the new defense, outcome bias. The drug company provided warnings in the strongest terms. The sole explanation for this verdict is outcome bias.

The latter violates the procedural due process rights of the civil defendant. The SC has held that these exist.

The lawyer excitement over preemption stems from a cut in claims by the lawyer. This cut in claims hurts both plaintiff and defense bars equally.

Posted by: Supremacy Claus | September 29, 2008 1:43 PM