Suing Merck

A whole lot of people are suing Merck over Vioxx, and Sebastian Malleby thinks that's just crazy. Bush should use this episode of litigation-gone-wild, Malleby says, to push for tort reform and rescue his domestic agenda.

Now, I don't know if these lawsuits have merit or not. I tend to think they're not frivolous because they're actually getting to trial. And while the science here might be difficult and ambiguous, let's not forget that Merck got itself in trouble for systematically suppressing research that raised questions about Vioxx's safety. Perhaps this is more a case of "it's not the crime, it's the cover-up", but in any event Merck certainly isn't an innocent victim here.

But maybe Malleby is right to suggest that it might not be the best thing for Merck to be looking at thousands of lawsuits costing billions of dollars. But Malleby certainly misses the point entirely by describing this as a tort-reform issue. It's not — it's a regulatory one.

If the FDA had taken its job seriously and actually regulated the pharmaceutical industry, then we might not be looking at these lawsuits right now. If the FDA prioritized safety rather than drug industry profits, we might not need lawsuits to pick up the slack as bad drugs come to market. I'd be willing to consider trading some meaningful reforms of the drug approval process for some new restrictions on lawsuits in this area, but that would require action by Congress against a powerful and "helpful" interest group; I'm not holding my breath. As for cynics like Malleby, these lawsuits are best seen as a political opportunity to bash the Democrats, rather than as an indicator that something has gone wrong with the process. Hence his refusal to recognize and engage the core problem.