What Worries Me is, What Happens if the Jury is Wrong?

26 02 2008

 Court Considers Protecting Drug Makers From Lawsuits
New York Times: LINK justicefish

If you can’t sue drug makers, can you sue the government or FDA for approving it? or does the warning label merit a risk? who reads warning labels anyways? I do. I don’t want to die, so you should too.

WASHINGTON — Less than a week after issuing a sweeping ruling that bars most lawsuits against medical device makers, the Supreme Court heard arguments Monday in the first of two cases that could determine whether drug makers receive similar protection.

Justice Stephen G. Breyer said the fundamental question in the cases was who should make the decisions that will determine whether a drug is “on balance, going to save people or, on balance, going to hurt people?”

“An expert agency on the one hand or 12 people pulled randomly for a jury role who see before them only the people whom the drug hurt and don’t see those who need the drug to cure them?” Justice Breyer asked.

Normally a member of the court’s liberal wing, Justice Breyer came down squarely on the industry’s side when he answered his own question, saying Congress left the role of policing the medicine market exclusively to the Food and Drug Administration.

“What worries me is, what happens if the jury is wrong?” he said.

If the justice’s view prevails, most lawsuits against drug makers, thousands of which have been filed in recent years and settled in some cases for billions of dollars, would be barred. But the Supreme Court is likely to wait until next year to answer Justice Breyer’s question completely.

That is because the question before the court Monday in Warner-Lambert v. Kent was in part restricted to the effects of a Michigan statute that bars personal injury suits against drug makers unless injured patients can show that the company deliberately withheld information from the F.D.A. that would have led the government to block the medicine from being sold.

The case was brought by 27 Michigan plaintiffs who claim they were injured as a result of taking a Warner-Lambert diabetes pill, Rezulin, which has since been withdrawn from the market. The plaintiffs claim the company withheld from the F.D.A. evidence of Rezulin’s dangers to the liver that would have led the agency to deny an approval.

But in a 2001 case involving the Buckman Company, the Supreme Court held that plaintiffs cannot sue based upon claims that a manufacturer defrauded the F.D.A…

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