A Supreme Court Paying Attention To, Of All Things, The Will Of The People? Yes Drug Manufacturers CAN Be Held Responsible For Deadly Products

I remember in a high school American history class a teacher shocking me by telling us that the Supreme Court was super-sensitive to the ebb and flow of politics and how that alertness often impacts decisions. Well, hard core ideologues like Antonin Scalia, Sammy Alito and John Roberts-- who were chosen specifically for their unbending and partisan extremism-- will never be accused of sensitivity or alertness, but the rest of the Court (even, kinda/sorta Clarence Thomas!) voted against the kinds of anti-family corporate arrangements that were the hallmark of Bush Regime "justice."

The case was against a Pharmaceutical company, Wyeth, and this morning the Supreme Court, in a 6-3 decision, "upheld a $6.7 million jury award to a musician who lost her arm because of a botched injection of an anti-nausea medication. The court brushed away a plea for limiting lawsuits against drug makers." The rationale behind that plea was at the core of Bush Regime "tort-reform" and consumer policies and that "his" Supreme Court struck it down immediately brought to mind Mr. Feldstein from James Madison High School-- who not only taught me history but also planted certain ideas in the heads of a young Supreme Court Justice-to-be, Ruth Bader Ginsburg, as well as future Senators Chuck Schumer and Bernie Sanders.

In her thorough and compelling compendium of all that went wrong under the Bush Regime, Right Is Wrong: How the Lunatic Fringe Hijacked America, Shredded the Constitution, and Made Us All Less Safe
, Arianna Huffington looked at the dysfunctional and catastrophic dynamic between weakened regulatory agencies and the industries they were created to monitor. In the case of the FDA, 100% under the sway of overly generous Bush campaign donors at Big Pharma, it "proved especially deadly, with numerous drugs being pulled off the market only after causing serious injuries and deaths... Big Pharma spent over $170 million on lobbying in 2006, and has contributed over $66 million to federal candidates since 2002, with over $46 million of that going to Republicans."

In return the Bush Administration has served up FDA commissioners like Lester Crawford, who was forced to resign after failing to disclose that he owned stock in companies regulated by his agency, and current FDA commissioner Andrew von Eschenbach, a vocal supporter of faster drug approvals. The Bush administration has also given back to big business interests by taking away: the FDA is conducting only half the food inspections it was doing in 2003, and safety-testing of U.S.-produced food has dropped nearly 75 percent since 2003. This despite an upswing in highly publicized food recalls and outbreaks of food poisoning. And with more and more of our food coming from other countries, how appetizing is it to know that just 1.3 percent of food imports were physically examined by FDA inspectors in 2006?

...Ah, the beauty of the self-regulating marketplace...

After failing to protect the public from numerous drugs-- including the herbal supplement ephedra and the arthritis drug Vioxx-- the Food and Drug Administration has actually taken the side of drugmakers in a series of lawsuits intended to prevent states from stepping in to regulate drugs in the agency's stead and limit the liability of the manufacturer for a dangerous product. This is the bleeding edge of the deregulation craze.

Today's Supreme Court decision-- despite corporate supremacists Roberts, Scalia and Alito-- smacked down the entire edifice the Bush Regime built it's approach on. Laurie Beacham and Amy Widman of the Center For Justice And Democracy have written extensively about how the Bush Regime has undermined the basic premises on which the regulatory system was developed-- to protect society from unrestrained, unbridled corporate greed.

Agencies are supposed to protect the public by regulating their respective industries. While they derive their authority to regulate from Congress, their leaders, in many cases, are appointed by the president.  It is now widely known that many agencies have been seized by the very industries they are supposed to regulate, led by a revolving door of industry figureheads. For example, Jeffrey A. Rosen, general counsel for the Department of Transportation, is a former attorney for General Motors Corp. Erika Jones, former general counsel for NHTSA, now represents the auto industry. Daniel Troy, Chief Counsel at the FDA from 2001 to 2004, had a previous career representing pharmaceutical and tobacco companies in cases against the agency. In fact, it was soon after Troy’s appointment that the FDA began interceding in lawsuits on behalf of corporate defendants.  The result is agencies that protect industry from liability rather than protecting the public from negligent industry. This is more than cronyism; it is industry regulating itself.

...With regulatory agencies controlled by industries and headed by people biased against regulation, it is only liability that provides manufacturers, chemical companies, auto-makers, drug companies and other industries with an incentive to create safer products.  Litigation not only results in numerous dangerous products and practices being made safer or removed from the marketplace, but also allows attorneys to unearth important information and exposes these dangers to the general public. While so-called “tort reform” laws have already significantly eroded the legal rights of citizens to bring reckless corporations to court, “preemption” takes it a step further. The sector of the federal government charged with regulating industry is itself doing what big corporations have been trying to do through legislation for the last three decades: eliminating the right of injured people to sue and collect compensation from those responsible. 

So far, courts have resisted accepting preemption arguments made by agencies intervening in lawsuits.  It is yet to be seen how courts will respond to the newly promulgated agency preemption “rules,” though it is clear that the Bush administration is intent on appointing pro-industry judges. The collusion between industry and “safety” agencies is leading this country into a world where using prescription drugs, driving your car, and making cell phone calls require blind faith in corporate decision-making.  This is a proven health risk.

Today's Supreme Court decision stepped back from the Bush era precipice, although a startling report in today's Wall Street Journal made it very clear that Big Pharma was far from the only corporate sector bribing our political establishment. The banksters, for example, spent $5 billion to grease the wheels of deregulation.