Tort Litigation Improves Drug Safety by Prompting Pre-emptive Recalls

Another post at Drug & Device Law that makes me want to gnash my teeth:

… Does tort litigation improve the safety of drugs?

The plaintiffs’ bar screams yes: It insists that lawsuits unearth new information that protect the public.

Is that true?

We haven’t seen any empirical scholarhip on this point (though, Lord knows, it might exist, and we simply haven’t come across it). And it’s pretty hard to research this question, given the nature of what you’re looking for.

But we’ve found a few authorities that suggest that tort litigation rarely contributes to protecting public health.

Thus, for example, Richard Epstein recently wrote:

"The drugs that usually generate the most litigation — such as Rezulin and Vioxx — usually are withdrawn before litigation commences. Indeed the plaintiffs’ bar rightly free rides on FDA determinations, reducing the social gain from litigation."

Richard A. Epstein, "The Case For Field Preemption Of State Laws in Drug Cases," 103 Northwestern University Law Review Colloquy 54, 59-60 (2008) (and the usual link).

Why, pray tell, are pharmaceuticals so quick to withdraw these drugs when a problem is discovered? Maybe, just maybe, to avoid further civil liability?

Indeed, without tort litigation there would be no consequences at all to squeezing a little (or a lot) more profit out until the manufacturer reached the point of criminal liability.

I’d call that "unsafe."

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