NOVEMBER 7, 2008

OUR PRESIDENT'S [SECRET] PARTING GIFT TO CORPORATIONS: A GET OUT OF JAIL FREE CARD

President George Bush's lasting legacy may very well be a revamping of the judicial system. Our country is based on a balance of the judicial, executive, and legislative branches of the government, and an appropriate balance between the power of the states and the federal government. However, in a bizarre subversion of the supposed aims of the Republican party to diminish the role of the federal government in everyday lives, the Bush administration over the past eight years has carried on a secret campaign to take away individual liberties and build a Big Brother type of government which controls everything. This includes things like the Patriot Act, but more subtley in a pay-back to the corporations that got him elected, he has worked to give corporations a get out of jail free card in the form of immunity from prosecution.

Hands in the cookie jar

















As described in a recent report prepared by the American Association for Justice, based on Freedom of Information Act requests for correspondence within multiple US agencies that regulate everything from prescription medications to automobiles, there has been a systematic effort to insert language into the rules written by these regulatory bodies to remove corporations from liability for the products that these federal agencies cover. The report states:

This language would effectively block all product liability lawsuits from being adjudicated and would let corporations “get out of jail free” even when their products seriously injure or even kill Americans.

I have been primarily interested in how this plays out in the field of prescription medications, where the FDA has been pushing the concept of preemption, which means that citizens can't sue a drug company in state courts if a drug has been approved by the FDA, since the federal government "preempts" state law.

This concept is a misinterpretation of the law and represents an attempt to eviscerate one of the three branches of our government, the judicial. Considering how the executive branch has ignored the legislative (not responding to subpoenas etc) I guess they would prefer a fascist-style dictatorship. And you may think you don't have to worry because of the recent election results but the placement of like-minded individuals in the judicial branch from the Supreme Court on down is a lasting legacy that we will have to deal with for years to come. The current case of Wyeth v Levine before the Supreme Court will represent the first ruling on preemption related to prescription drugs.

Emails contained in the report document how agencies within the federal government have corresponded with one another to promote this concept. To give one example, Dan Troy, ex chief counsel for the FDA, had bona fide credentials as member of the American Enterprise Institute and other conservative organizations, and made over $100,000 per year consulting to the drug maker Pfizer. He was given his pick of where to go in the new Bush administration and chose to go to the FDA where he was effectively the leader since there was no permanent Director. As documented in the AAJ report, in the two year period he was there he met 129 times with representatives of the pharmaceutical industry [his predecessor met with them once] before he eventually resigned under a growing cloud related to his promotion of pharma. While at the FDA he told representatives of pharma that they should "give a Hollywood pitch" to the FDA to get them to file friends of the court briefs on behalf of drug companies being sued for toxic side effects of their drugs under the rationale that if the FDA approved it, they had an interest in seeing that no liability was found.

The Hollywood Pitch

















Troy eventually concluded that filing all those briefs took too much time, so he came up with the language of preemption, and the administration worked to stack the courts in favor of this bogus idea, and the rest is history (e.g Wyeth v Levine).

It will probably take legislation to undo this crime, that is if the legislative branch still exists.

To comment on this blog please write to jamesdouglasbremner@yahoo.com and indicate whether comments are public or private. If you click on the comment link your comments will get truncated after a couple of sentences (sorry).

COMMENTS

Henry Greenspan wrote on November 7, 2008

I like your piece about the history of preemption. I would just add two points.

First, the move from "script-pitching" to full preemption was not simply a development of the past six years. Even before Dan Troy was at FDA, the stategy was set. It is a classic case of "regulatory take-over" of which there is a long history. Fight a regulatory agency for years (as Dan Troy did as a lawyer for big tobacco and pharma); become the effective head of it; gut it; and then canonize (via preemption) what's left. As you note, this pattern goes far beyond FDA.

Relatedly, it is important to underline that preemption is the heir to radical _de_regulation. The logic is explained in the notion of regulatory take-over above. Thus, the current preemption movement has deep roots (and funding sources) that 'blossomed' as public policy with Reagan, but really goes back quite a bit earlier. Once again, the logic is: Take-over the hen house; deconstruct it;; and then declare it omniscient.

Henry Greenspan, Ph.D.

University of Michigan

Doug Bremner wrote on November 7, 2008

I guess that is how the fascists got their start.

Viola Vaccarino wrote on November 7, 2008

If we say that drug companies, once they get their products approved by FDA, are no longer liable for side effects, then doctors, once they get board certified, are no longer liable for medical errors. Does this make sense?

Mary wrote on November 7, 2008

Look at what is happening in China--melamine in baby food, lead in toys, etc. We count on our ability to bring companies to their knees with lawsuits to protect ourselves from those situations...without that, greed prevails.

Matthew Holford wrote on November 7, 2008

URL : http://itsquiteanexperience.blogspot.com/

Comment : Simple solution: dont buy the f***ing products.

marcia wrote on November 7, 2008

How did Wyeth v. Levine become a product liability case? My understanding was the patients arm had to be amputated because the drug was accidentally administered IA push, and was settled for malpractice? Ive read a couple of summaries of the case, but

Doug Bremner wrote on November 7, 2008

Because Levine said that Wyeth should have stated on the package that an iv should be started (would have prevented this event)

Read More and comment (0 comments) --

permanent link --

Make a Comment
View Comments