TorteDeForm

Justinian Lane

Mylan’s Latest Troubles Show Why We’ll Always Need Trial Lawyers

Generic-drug manufacturer Mylan has been the subject of several investigative reports over the last week.  The news stories allege that Mylan employees “routinely” overrode safety alerts on the drug production line, and that the problem had been “pervasive” for several years.  Here’s a link to the original article.  Additional commentary about the Mylan investigation is at my other blog, www.dangerousdrugs.us

I think most people have the same reactions when they read the Mylan article.  First, we hope that Mylan management actually has (as they claim) fixed the problem.  Next, we hope that the FDA will verify that Mylan management has fixed the problem.  Finally, we hope that this isn’t happening anywhere else.  I know I had all of those reactions.  But I also had another reaction – I was again reminded of why we will always need trial lawyers.

Have you ever done something you know was wrong, but you rationalized your way into doing it?  Here’s the easy example we’re all guilty of: Using an office paper clip, sticky note, fax machine, or pen for personal business.  We all know that our employers don’t buy office supplies for our personal use, but we’ve occasionally used them for personal use anyway.  We usually rationalize our way into thinking that it’s ok because the cost of what we’re using is a tiny fraction of a penny, and the company won’t miss it or won’t care.  That’s the easy example.  But rationalization can lead people to do far more sinister things than steal a paperclip.  The next step on the rationalization ladder is the fast-food worker who steals soda, rationalizing the theft on the grounds that the company can afford it.  Or the guy who leaves work at 4:58 but signs out at 5:00 to “simplify it for accounting.”  I’m not even going to speculate as to what role rationalization played in the financial crisis.

I will, however, speculate as to what role rationalization may have played in the Mylan crisis.  The article alleges that one potential reason that workers overrode safety alerts was because the factory was under pressure to increase production lest the company shutter the factory and send all the jobs to India.  When I read that, I was reminded of the 80’s movie Gung Ho.  If you haven’t seen or don’t remember the movie, here’s the tie-in: Workers at an American car factory are under intense pressure to meet the production levels of their counterparts in Japan.  If they don’t match the Japanese, they will all lose their jobs.  As the deadline gets closer, they start cutting corners: Using four fasteners instead of five, leaving radios disconnected, etc.  Minor things that they feel can either be fixed later, or by the dealer.  However, as the deadline looms even larger, they throw all sense of quality out the window, omitting things like installing engines in the cars, hoping that the inspection team won’t pop every hood. 

The twenty-year old movie and the week-old news story illustrate the same principle about human behavior: When someone’s livelihood is on the line, he (or she) will rationalize cutting whatever corners are necessary to save his job.  It’s easy to imagine some of the excuses that went through the heads of the Mylan employees who allegedly overrode safety systems.  “It’s probably a false alarm.”  “These damned computers are too sensitive.”  “It’s stupid to scrap the whole lot just to find a few pills that are out of spec.”  All of those excuses are just mental shortcuts to avoid thinking “If I do the right thing, I might lose my job.  So I’ll do the wrong thing and save my own skin.” 

People doing the wrong thing to save their own skin is a recurring theme in many lawsuits.  Medical facilities sometimes “doctor” medical records.  Pharmaceutical companies occasionally submit data to the FDA they know is false.  Executives have been known to shred incriminating documents. We were fortunate that an investigative reporter looked into what was going on in the Mylan factory.  The investigative report has probably prevented Mylan and other companies from engaging in similar behavior for fear of exposure.  That helps prevent people from being harmed in the future.  It doesn’t, however, help people who may have been harmed in the past.  That’s the job of a trial lawyer.  If someone was hurt by a batch of defective drugs that came out of the Mylan factory, it will be a trial lawyer who will help that person hold Mylan accountable. 

Unless and until human nature changes to the point that people aren’t willing to rationalize their way into doing the wrong thing to save their own skin, we’ll always need trial lawyers.

Justinian Lane: Author Bio | Other Posts
Posted at 10:57 AM, Aug 01, 2009 in
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Comments

It will be a trial lawyer who will figure out a way to line his/her pockets with lots of gold while ensuring that the erstwhile clients (especially in class action litigation) gets a few crumbs from the table.

Thus it will be, thus it has always been.

By the way, why does your blogroll only link to blogs that largely agree with you(mostly left wingnuts) ? The better blogs link to a variety of opinions. Are you afraid that of the opposition ???

Posted by: avenger | August 1, 2009 7:04 PM

justinian,

i'm glad you posted this! glad td is back. i'll be joining in w/ the posting soon too.

peace,
kia

Posted by: kia | August 9, 2009 2:38 AM

I'm admittedly no expert on this subject--and normally I'm inclined to assume that companies routinely make unethical decisions, but I think your speculation about the nature of the Mylan overrides is something of a non sequitur.

I can speculate about several situations where a safety alert override is done because of minor triggers to the system. Too many pills feeding through the system simultaneously, a discrepancy in dosage based on bad data. I don't work in the industry, so I can't say what other situations there may be. I'm just saying that there are possibilities where the company can quickly resolve a problem that is a glitch more than a hazard and continue business as usual. Perhaps it has to do with the nature and sensitivity of the safety equipment? Granted, I want my drugs as safe as possible, but the standards by which we monitor production must operate efficiently for the sake of efficient production.

Posted by: Trevor | August 31, 2009 3:03 PM

I'm also interested in the fact that your short piece on "what exactly is tort reform" on what appears to be YOUR site links to tortdeform.com.

I don't mind people having an axe to grind, just don't try to present inpartial information--a la whatistortreform.com--and follow it up with obviously charged language about corporate interests and businesses.

Posted by: Trevor | August 31, 2009 3:08 PM

Just noticed these comments.

Avenger: There won't be any class action litigation over this. Re: links. (a) I don't know who determines who gets on the blogroll. (b) Walter at Overlawyered refuss to link directly to my sites or this site, and instead uses URL shorteners. Why does he do that? To avoid giving us what's sometimes called "Google Juice." Search for that term and then see if you think he's being unethical.

Trevor: I agree there can be inoccuous errors that don't justify much happening. But it should be a supervisor who makes that call, not an untrained line worker. Also, nothing at whatistortreform.com is slanted or biased. I provide a definition of what specific terms are, the pros and cons of each, and links to sites with multiple opinions.

Posted by: Justinian Lane | September 2, 2009 5:32 PM