- The Washington Times - Sunday, October 24, 2004

Even allowing for the hyperbole natural to the final weeks of a presidential campaign, Sen. John Kerry’s effort to tag President Bush with the blame for a shortage of flu vaccine is a stretch.

“We’ve got people standing in line for hours on end — some of them in their 70s and 80s,” Mr. Kerry lamented the other day. “It’s just business as usual with George W. Bush: You got to ignore it, deny it, then try to hide it, and then say you would do it the same way.” He, Mr. Kerry, has a plan, though it’s not much clearer than his “plans” on so many other issues.

As it happens, extra doses already are in the pipeline, promising to cool the so-called crisis. But the Kerry charge is a classic of political misdirection. Clearly he would like everybody to forget that Mr. Bush actually has tried to do something about one of the major underlying problems — an out-of-control tort system — but has been blocked at every turn by none other than John Kerry and John Edwards.

It’s not hard to see why.

The trial bar has emerged in the last decade or so as the biggest single interest group contributing to the Democratic Party — an astounding $418 million since 1990 and $81 million this year alone, according to the Washington-based Capital Research Center and the Center for Responsive Politics. Mr. Kerry’s choice of running mate, John Edwards, was well positioned to keep this tap open: a former personal injury lawyer himself, Mr. Edwards has raised millions from colleagues desperate to stave off any serious tort reform.

The flu vaccine panic of recent weeks ought to be a vivid reminder of the indirect costs that the departure from traditional understandings of liability are exacting.

In the 1960s, notes William Tucker of the Discovery Institute in Seattle, there were 26 companies making vaccines of various sorts in the United States. Today there are only four, and none of them makes flu vaccine. Only one, Merck, makes vaccine against pneumonia, a not-infrequent outcome of flu. “For emerging illnesses, such as Lyme disease, there is no commercial vaccine, even though one has been approved by the Food and Drug Administration,” Mr. Tucker added recently in the conservative Weekly Standard.

Mr. Tucker traces the problem to a famous case in 1955, when Cutter Laboratories — now known for mosquito repellent but then a supplier of polio vaccine — was sued by the parents of an 8-year-old girl whose legs became paralyzed after taking the Cutter vaccine. The jury found no negligence but awarded the parents the then-unheard-of sum of $147,000 anyway.

“That decision made Ralph Nader possible,” personal injury lawyer Melvin Belli was quoted as saying.

True, it was never easy to make a buck in the vaccine business. Demand is difficult to predict, which often left manufacturers with huge unsold inventories. But at least there were plenty of suppliers before the liberals got busy improving things.

The Clinton administration exerted strong pressure on drug companies to hold prices to artificially low levels in the name of compassion. And the same anti-risk mentality driving the tort revolution led the FDA to impose tighter and tighter production regulations that squeezed profit to the vanishing point.

Thus, in the name of safety and compassion, we have succeeded in creating a world that is actually more dangerous, not less dangerous — particularly, in the case of flu vaccine, for the very old and the very young. And in the name of punishing the “rich,” we have created a world where nobody can make a profit producing needed goods. The impact of the tort revolution has been most widely felt in the ailing U.S. automobile industry. Thus to hear Mr. Kerry and Mr, Edwards rail about the fact that unemployment in battleground states like Michigan and Ohio is slightly higher than the national average is particularly galling.

And to be lectured by them on the evils of outsourcing is doubly irritating. Foreigners haven’t been stealing American jobs. Politicians and their friends in the tort industry have been giving them away.

Tom Bray is a Detroit News columnist.

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