Nauseating Cases of Product Liability

Article excerpt

Byline: Henry I. Miller, SPECIAL TO THE WASHINGTON TIMES

Morning sickness - the nausea and vomiting that afflict more than half of pregnant women - can be debilitating.

There once was an excellent prescription medication for it, but the manufacturer stopped selling it in the United States.

Safety problems? Unprofitability? Not at all. Frivolous, debilitating lawsuits killed this drug and left American women to munching crackers, or to quackery like herbal remedies or bracelets that supposedly compress acupuncture points.

During the 1970s and 1980s, almost 2,000 lawsuits were filed against Merrell Dow Pharmaceuticals, alleging the company's drug Bendectin had caused birth defects when women took the drug to prevent morning sickness. Not a single judgment against the company was ever upheld. But ultimately Merrell Dow discontinued manufacturing the extraordinarily useful drug because of fears an unreasonable and hostile jury might some day award huge damages.

Despite a generally high level of rigor and quality control in the pharmaceutical industry and intense regulatory scrutiny by the Food and Drug Administration, drug and medical device companies are tempting targets for product-liability litigation. Even if no causal relationship between the product and injury or illness in patients can be demonstrated, or if the alleged injury is only a trivial side-effect listed on the product's label, companies are at risk.

The most egregious example of damage wrongfully inflicted on a product manufacturer is surely silicone breast implants. Since the first silicone breast implant case went to trial in the 1980s, hundreds of thousands of women have filed claims in state courts or through a federal class action settlement. The vast majority of the verdicts have been decided in favor of the defendants, based primarily on medical evidence silicone breast implants are not dangerous.

What has befallen Dow Corning and other manufacturers of breast implants is corporate America's worst nightmare: the virtual annihilation of a successful company through civil lawsuits without evidence of either wrongdoing or product defects, or even any association between the product and severe illness. After more than 20,000 breast implant-related lawsuits, Dow Corning had to file for bankruptcy protection.

Experts estimate our tort system costs Americans $180 billion annually in higher costs for everything from Little League baseball bats and football helmets to automobiles. …