Drug safety: Jurors shouldn't be practicing medicine

Jurors aren't physicians. They're regular people. So why would we entrust them with medical decisions best made by clinicians or scientists? It sounds preposterous, but jurors could be given the responsibility ...

[Axiomatic]

I'm not sure if you knew this or not but preemption is the new guy on the block not product liability lawsuits. You make it sound like a loss in Levine will destroy the pharmaceutical industry. We have been protected by the FDA *and* product liability accountability through litigation for almost 100 years. Preemption's proposal is that we do away with product liability litigation and rely solely on the FDA. The FDA would be the first one to tell you it is understaffed and technologically inadequate, not to mention the recent report to Congress by FDA staff whistle blowers that the management is corrupted by the industry.
Concerning your concern that a jury can't judge medical issues. They have been for decades and there is no reason to stop now, other than for protection of the profits of the bad players in the pharmaceutical industry to the detriment of the public.

[Max]

I have been advocating for a change in the expert witness process for some time based on the very issue Mr. White is describing in this article, namely, making 12 anonymous jurors the decision makers on highly specialized, technical matters. It's absurd, but it's what the trial lawyers want, because it allows them to manipulate jurors and the entire court system. Controversial issues are decided not by the facts as they are best understood by experts, but rather, by the manner in which a lawyer can lead his highly paid "expert" through the maze in front of a jury.

In the current system, each side hires their own "experts", and then allows the lawyers to question them, even when one "expert" says "left", and the other says "right". The jury is then supposed to decide which expert is correct. That's ludicrous when the issue is an esoteric medical or technical subject.

A much fairer system is that each side allowed one or two experts, and the court assigns one - the total being an odd number. The experts meet outside of the courtroom, and decide by a vote what evidence will be admitted to the court. If they can't agree, then it's obvious the "evidence" is not conclusive, and asking a jury of lay people to make the decision is wrong. The evidence the experts agree upon is introduced to the court by the court appointed expert, who may be cross examined by both sides.

Tort reform. We desperately need it, but those who want it the least, are also the majority in our government, all three branches - lawyers.

[Axiomatic]

Max, I agree we need some form of tort reform. Another idea is using special "medical courts".
But tort reform by elimination of tort is not tort reform.

[Neil]

Why have you distorted the Wyeth v Levine case? If Wyeth loses, the legal ramifications will stay as they have been for years. It's Wyeth and their advocates who want to change the face of the legal system as it applies to the pharmaceutical industry. Despite what everyone would like to believe, the FDA is not as has never been equipped to fully monitor drugs once they get to market. The idea that the FDA should have the last word on safety during the entire life of a drug is unrealistic and preposterous. Many, MANY drugs which have been found to be horribly dangerous, or deadly, after being FDA-approved, have been so due to documentation and statistics discovered during the litigation process. Certainly not because of the vigilant oversight of the FDA. Simply because the FDA is a federal agency does not make their decisions infallible, so to take away all legal remedies for an injured person is ridiculous. The primary benefit of preemption is to give the pharmaceutical industry more power (and money) than they already have. Tell the truth.

[Axiomatic]

Neil, agreed. It is the recent tactic of the pro preemption group ie.(industry) to make those that are unaware of the history of drug/device safety believe that product liability is some kind of new animal about to devour the pharmaceutical industry. Exactly opposite to reality. I suppose if you can't rely on facts its best to make up stories. It goes along with what the "inventor" of preemption, Daniel Troy once said - "We can't afford to get involved in every case," he said, according to an affidavit written by someone who was there. "We have to pick our shots…so make it sound like a Hollywood pitch."
He said this while he worked for the FDA (2001-2004)and was involved in a backhanded effort to support pharmaceutical companies that were involved in product liability law suits. His final scheme was to insert the preemption language into the preamble of device safety language thereby avoiding any public discussion on the subject. Now we are living with the results.