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OpenMarket: Health and Safety

  • An Explosion of Litigation

    March 13, 2009
    Already burdened by $8 trillion in new federal spending commitments and the likelihood of higher taxes to pay for bailouts, pork, and welfare, the economy now faces an additional threat: an explosion of litigation. Even liberal Washington Post...
  • Yes, "Botch" is the right word.

    March 5, 2009
    Alex is right. “This IS one of these questions about what to do in the real world, where first-best solutions just aren’t politically possible†(emphasis added). So, I think it’s reasonable for we libertarians to support the less bad position that, if our society is going to create a regulatory gatekeeper for drugs and empower it to make risk-benefit balancing decisions on our behalf, then we should not permit lay juries to ratchet up that regulation in circumstances in which all reasonably available information about risks and benefits is internalized into the system.
  • Did the Supreme Court "Botch" Wyeth v. Levine?

    March 5, 2009
    I was initially going to post this as a comment to Greg Conko's recent post arguing against the Court's recent decision in Wyeth v. Levine, but the comment system didn't work correctly for me. I appreciate the force of Greg's argument (and I certainly agree that this particular case should have been decided much earlier on different grounds), but I think there is room for reasonable disagreement within the libertarian community about whether FDA preempting state tort law is good or bad. This is one of these questions about what to do in the real world, where first-best solutions just aren't politically possible. Most libertarians would likely agree that there should be only one...
  • Supreme Court Botches Preemption Case

    March 4, 2009
    Ms. Levine alleged not only that the warning on Phenergan's label wasn't strong enough, but that Phenergan was "not reasonably safe for intravenous administration," and that Phenergan's label should have indicated that the drug "should not be used intravenously." But, that's a question regarding FDA's approval of the product for that use, not merely the sufficiency of the warning.
  • Obama's Bankruptcy Math Has to be Wrong

    February 25, 2009
    President Obama claimed in his speech tonight:
    "For that same reason, we must also address the crushing cost of health care. "This is a cost that now causes a bankruptcy in America every thirty seconds."
    This number can't be true.  A bankruptcy every 30 seconds would be equal to 120 bankruptcies per hour.  Multiply that by 24 hours in a day and 365 days in a year (presuming a non-leap year), and you get 1,051,200 bankruptcies per year. This numbers seems a little high, even considering that 2008 was a year with a lot of a bankruptcies.  But there's a reason that number seems high.  Namely, it's not true. According to Zacks Investment Research:
    "During 2008, personal bankruptcies had the most significant increase since the major...
  • Wyeth v. Levine: Policy Arguments Regarding Preemption

    February 13, 2009
    The Wyeth v. Levine case presents a narrow set of facts in which the Food and Drug Administration had, for many years, known about the risks presented by intravenous push injection of Phenergan and worked with the manufacturer to carefully word the label description of this risk. Nevertheless, disregarding the limiting facts in the Levine case, a flood of “friend of the Court†pleadings supporting Ms. Levine sought to broaden the preemption debate and persuade the Court of the critical need for additional tort-based supervision of the pharmaceutical industry.
  • Preemption in Wyeth v. Levine: Broader Implications

    February 13, 2009
    The legal arguments of the parties, and the incremental approach typical of the Supreme Court, strongly suggest that the Court will issue a narrow legal ruling addressing FDA preemption only in the context of fully-informed FDA labeling decisions directly challenged in state tort actions. Still, a number of organizations have filed amicus curiae (“friend of the Courtâ€) briefs making “policy†rather than legal arguments regarding the importance of this case.
  • Uber-Attorney Bert Rein to Guest Blog on Federal Preemption Case

    February 13, 2009
    Back in November, I wrote about the pending Supreme Court case Wyeth v. Levine, the decision in which will have a huge impact on the pharmaceutical industry and the law of federal preemption. I am happy to announce that Bert has agreed to contribute a few guest blog posts to Open Market discussing the importance of this case.
  • Coming to a Pharmacy Near You: One Size Fits All

    February 12, 2009
    Tucked away in the stimulus bill is $1.1 billion to fund a new agency modeled after the UK’s NICE, which has repeatedly denied Brits access to breakthrough drugs for life-threatening conditions. Think that can't happen here? Think again, because it already has.
  • Dickie Scruggs Back in Court

    February 9, 2009
    But, alas, not as a litigator - the role that made him rich and famous - but as a defendant. According to Legal Newsline, Richard "Dickie" Scruggs is headed back to federal court to plead guilty to another count of trying to bribe a judge. He's already serving a five-year sentence for a previous bribery attempt. OpenMarket readers will remember Scruggs as one of the fattest of fat cat trial lawyers to emerge from the multi-state tobacco settlement reached between tobacco companies and state attorneys general in 1998. Our own Hans Bader revisited the scandalous fees charged by lawyers like Scruggs last...


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