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November 03, 2005


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UC Alumnus

"There were still all the theatrics by Mark Lanier which showed his skill as a trial lawyer who knows how to command a court room, but little else."

Didn't Merck have the resources to hire as skilled and capable a trial lawyer to represent it? Why is it that when large corporate defendants use their virtually unlimited resources to pour out plaintiffs, we don't attribute the defendant's success to overwhelming resources rather than the merits of the defendant's positoin? Yet, when a plaintiff's trial lawyer dazzles a jury, the verdict is attibuted to the lawyer "who knows how to command a courtroom, but little else"?

Moreover, those who tend to complain about civil juries rendering extraordinary verdicts for plaintiffs tend to remain silent when criminal juries allow prosecutors to railroad defendants who don't have the financial resources to hire capable counsel. Criminal cases today, with DNA evidence and similar forensics, are no less complicated than civil suits.


uc alumnus,

you don't seem to understand the article.

let me try to explain it to you.

state tort claims for failure to warn should be preempted when the drug has been through years of fda review, and contains a warning that is required verbatim by that fda.

as for jury trials in criminal cases, they remain the most pro-defendant system the world has ever known.

i take it you would prefer an inquisitory system to an adversarial one?


Professor Epstein's point regarding the wasteful nature of individual lawsuits for FDA approved medication is especially relevant during benefits open enrollment season. My contribution for my family health insurance policy increases by $55 per month next year. While I understand that there are a myriad of variables contributing to the increase, higher drug costs are certainly a factor and potential liability is certainly priced into the drugs. I think an arbitration arm of the FDA with power to award claimants could be a possible solution. The FDA would then have all the latest information about potential problems and claims. Such information would allow the FDA to better make a decision to pull a drug when the risks outweigh the benefits as well as inform health care providers of additional risks. The drug companies would benefit because specious claims would be weeded out by experts who know and understand the science behind the drugs. In short, the drug companies would still be respnsible for their products, the FDA would have better information, injured parties could still be reasonably compensated and hopefully we could reduce a small part of the systematic cost increases plaguing our health care system.

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