- The Washington Times - Sunday, May 7, 2006

A bird flu pandemic that hits the United States could trigger 40 percent absenteeism rates among the U.S. workforce and kill 2 million Americans, according to a just-released White House report. The Bush administration has asked Congress for $2.3 billion this year to fund the next phase of its pandemic preparedness effort, including a plan to create the domestic capacity to produce and stockpile pandemic vaccine. Will it be enough?

Fortunately, we live in a country that develops up to 70 percent of the world’s new medications. The pharmaceutical industry spends $39 billion a year on research and development — a sum greater than the entire operating budget of the National Institute of Health, and 19 times more than the research and development budget of 1980.

But the people we rely on to bring us the medicines and vaccines that will protect us from emerging global epidemics are now contending with an even bigger threat to the public health: lawsuits.

The trial lawyers of America have set their sights on the pharmaceutical industry, and the results could be catastrophic. In my home state of Michigan, trial lawyers are lobbying to retroactively overturn a landmark law passed 10 years ago that says FDA approval of product cannot be overturned by state courts unless the approval was fraudulently obtained. This law has protected the rights of those who have been legitimately harmed while discouraging meritless lawsuits based on junk science. The trial bar’s efforts to roll back this law in Michigan are a herald of things to come nationwide.

It’s critical that we uphold laws like Michigan’s, and enact similar tort reforms in other states. Making a new drug available to the public typically costs $1 billion and takes 15 years. Only three of every 10 drugs that are approved by the federal government actually pay for themselves. It takes an enormous amount of capital to keep the pharmaceutical pipeline flowing — capital that comes from investors who are willing to take risks and be patient throughout a lengthy government review process that measures safety and effectiveness. We can’t afford to gum things up.

Yet the capital to finance this process of discovery and production is much harder to come by when drug companies are besieged by an ever-increasing number of mass product liability suits that force them to withdraw FDA approved drugs from the market, and make massive payouts to settle liability claims. The lack of capital means that new drug discoveries lag, promising areas of research are shelved, potential vaccines go untested, and effective remedies are kept out of the hands of doctors and patients.

In short, at a time when we need the pharmaceutical industry to be at its most nimble and creative, it is instead being forced to operate in slow motion.

The trial lawyers would like us to believe that their efforts are all about keeping us “safe.” But in fact, a recent empirical study by Emory University professor of economics and law Paul Rubin found that tort reform in the states that reduce incentives for lawyers and plaintiffs to pursue frivolous lawsuits actually reduced accidental deaths. Over a 19-year period, legal reform correlated to more than 14,000 fewer accidental deaths.

The debate over tort reform was important before the emergence of the global economy and the health threats it engenders. Today, the debate is urgent. If we allow the trial lawyers to decide when, how and if potentially life-saving drugs reach the market, we will have made an already dangerous world even more so. We need to act now to reform our tort system and curb lawsuit abuse, before it is too late.

Steven B. Hantler is a senior fellow at the Pacific Research Institute, chair of the American Justice Partnership, a coalition of state and national organizations dedicated to state legal reform, and assistant general counsel at DaimlerChrysler Corporation.

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