A Stitch in Haste

Here's an interesting if sad story:

Dr. David Cox is a stay-at-home dad, but not by choice. Cox is recovering from a stroke -- a condition he blames on Vioxx.
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Cox was taking Vioxx at the time of his stroke, and claims the controversial painkiller -- which drugmaker Merck pulled from the market in September due to serious safety concerns -- triggered the stroke.

He is not the first Vioxx user to blame Merck for health problems related to the drug; more than 1,500 Vioxx related personal injury lawsuits have been filed against Merck. But Cox's case won't be among them because Michigan law doesn't permit the lawsuit. A 1996 state law prohibits lawsuits against drug makers if the drug in question is approved by the Food and Drug Administration.
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Meanwhile, it's just not Michigan offering to shield drugmakers from lawsuits. Medical liability reform has been introduced in Congress. A bill in the house would limit a pharmaceutical company's liability for FDA-approved medications -- though it doesn't go as far as Michigan's law in banning outright lawsuits.

There are actually two distinct issues here. First is the question of whether FDA approval of a pharmaceutical should constitute a safe harbor against product liability. I have blogged about this subject repeatedly -- the chained post below has the archive at my old blog.

Bottom line: I'm amenable to the idea of a safe harbor, assuming we have a competent FDA and also assuming that the quite novel issue of "direct-to-patient" advertising ("Ask your doctor whether Kiptriol may be right for you...") is fully vetted beforehand. Two very big assumptions.

But there's a second question -- why are we yet again worshipping the false god of federalism in a situation like this? How can it possibly be fair for people in one and only one state to be denied the right to sue? The drug companies should either be liable or not be liable. Why some states and not others?

Here we go again -- we endlessly debate "states rights" (which is an oxymoron -- only individuals have rights...states have powers that may or not be infringed by federal encroachment, but not "rights" properly defined). Yet no one stops to think about Dr. Cox' rights. Maybe he should have the right to sue, maybe not -- that's among the most unsettled of questions right now.

But it cannot possibly make sense that Dr. Cox is precluded from suing in Michigan while Dr. Dicks can sue in Wisconsin and Dr. Peckers can sue in Indiana. Imagine the befuddlement if a law said that Michiganers ("Michuganas"?) in the upper peninsula could sue but those in the lower state could not. It simply wouldn't make sense, and neither does a state-by-state policy.

Federal pre-emption, whether for or against liability, is the proper policy here. National market, national advertising, national laws -- it's that simple. Federalism has no place here.