Today's Commentary (part 2)

On the domestic front there was an interesting editorial in today's Washington Post about the recent Vioxx lawsuit. The editorial describes the lack of science behind the recent judgment:

Unfortunately for Merck, scientific facts didn't play much of a role in the first Vioxx trial, which ended on Aug. 19. The Texas jury in that case awarded $253.4 million to the widow of a man who died of a heart attack triggered by arrhythmia, which is not a condition Vioxx has been proven to cause. The jury, declaring that it wished to "send a message" to Merck, decided to make an enormous symbolic award anyway. Besides, said one juror afterward, the medical evidence was confusing: "We didn't know what the heck they were talking about." Because Texas law limits the size of jury awards, the final cost to Merck is likely to be closer to $2 million. But the precedent set by the jury is ominous. Merck is facing about 5,000 similar lawsuits. If every one of those costs the company $2 million, the total price will come to $10 billion -- if, of course, a company called Merck is still around to pay it.

While the state of willful scientific ignorance in this country is depressing, it's certainly nice to see the generally liberal Washington Post take what amounts to a pro-business stance. The editorial proceeds to argue that since Merck, for the most part, practiced due diligence by going through the regulatory process and by pulling the drug off the market they don't deserve this kind of "disproportionate financial punishment." The Washington Post also points correctly to the consequences for consumers should the number of such lawsuits increase:

In the long term, using the courts to "send a message" to Merck isn't going to help consumers. If the result is an even more cautious FDA approval system and a more cautious pharmaceutical industry, that will keep innovative drugs off the market for much longer. More people will die waiting for new treatments. The cost of producing new drugs will rise dramatically. Already, there are whole areas of medicine -- women's health during pregnancy, for example -- that are made so risky by liability issues that companies may stop doing research in them.

This is good as far as it goes. But we can take the point to its logical conclusion. The FDA as such represents a formidable barrier to innovation, not to mention a violation of the rights of both pharmaceutical companies and individuals to trade freely without government interference. A company, particularly a company manufacturing drugs on which the life or death of its customers may depend, must build a reputation for quality. It is the importance of that reputation to the company that will best protect consumers, not government force.