I’ve already had my say on the Vioxx verdict, which generated some fairly lively discussion in the comments thread, but this has been a hot topic on the blogs all this week. Today’s Wall Street Journal, brings some great observations from law professor Richard Epstein:
To understand the Angleton verdict, one would think that Vioxx were the moral equivalent of mustard gas. But in truth, we should be grateful to any firm that speeds its product to market when its anticipated use promises many more benefits than adverse side-effects. Merck should not apologize for pushing hard to win quick market acceptance; before Vioxx was withdrawn, countless people with chronic pain were able to get on with their lives. Now these folks are left far worse off because of a double whammy: a Food and Drug Administration that yanks too many drugs off the market because it has no idea how to evaluate risk, and individual jurors who think it is their solemn duty to “send a message” to the drug companies on whose products we so desperately depend.
Not to mention jurors with a “solemn duty” and no clear understanding of the science behind the case they were charged with deciding.
Epstein goes on to make what I think is a sensible suggestion:
Your appalling carnage cries out for prompt action. Much as I disapprove of how the FDA does business, we must enact this hard-edged no-nonsense legal rule: no drug that makes it through the FDA gauntlet can be attacked for bad warnings or deficient design. In plain English, Mr. Lanier, you’re out of court before you make your opening statement. You’ve already proved beyond a reasonable doubt that the fancy diagrams that university economists use to explain why the negligence system maximizes social welfare is an academic delusion that clever lawyers use to prop up a broken tort system
And if the FDA process is broken and a bad drug gets approved, then just maybe its the government that should be held responsible, not the drug company that relied upon the governments certification process.
Either that, or get rid of the FDA entirely. Do that, and it would be acceptable to hold the drug companies solely responsible for their drugs.
I grew up in New Jersey and Merck is a major employer there, so Epstein’s final comment is a bit ominous:
So where does that leave Merck? Perhaps in Chapter 11, where this madness may be brought to a halt.
