AMERICA has become the country of the warning label. California is the warning-label state. Since California voters in 1986 approved Proposition 65 -- which mandates warnings when people are exposed to known carcinogens or chemicals that cause birth defects -- to live in California is to be warned. Most office buildings and parking garages post Prop. 65 warnings. When you fill your gas tank, there's a warning. When you go to a department store or a restaurant, there are warnings. Ditto the grocery store, where there are warnings not just about lighter fluid, nail polish and the effects of alcohol, but for fruits and vegetables, nuts and fish.

 

Now, if Attorney General Bill Lockyer has his way, you can expect warning labels for fast-food french fries and potato chips.

 

***

 

Ed Weil of the attorney general's office thinks the FDA is wrong. . . . Weil notes that the Environmental Protection Agency limits acceptable acrylamide amounts to .5 micrograms per liter of water, while the government found 40 micrograms in the average serving of chips or fries. . . .

 

Weil agrees there are too many warning signs -- although he argued that grocery stores, for example, post warning signs mainly to stop nuisance lawsuits. Lockyer is pushing the acrylamide issue, Weil said, because it is the government's job to dispense information and let consumers decide if they care about a possible carcinogen. (emphasis added)

Worth noting is the risible inaccuracy in Weil's statement.  If the AG's office were concerned with "dispensing information" it could have accomplished that with a press release.  Suing a handful of national restaurant chains has nothing to do with dispensing information.  It has everything to do with forcing private businesses to change their behavior and with adding leverage to civil class actions pending or threatened against those businesses.

And to what end does Lockyer intend this litigation?  Is he seeking "damages" from fast food restaurants?  (For what, I cannot fathom).  Is he seeking a court order that would compel the restaurants to post warning labels and signs?

Saunders continues:

Even Lockyer isn't that alarmed. In a press release announcing the suit, Lockyer said, "I am not telling people to stop eating potato chips or french fries."

Now I ask you: If people shouldn't stop eating these foods, why post a warning?

***

If Lockyer wanted to perform a true public service, he'd devise a way to whittle down the long list of Prop. 65 baddies. Instead he's fattening up the list.

Oddly, Lockyer is taking this stand as he begins his bid to become state treasurer in 2006. Some treasurer he'd make. With this lawsuit, I'm convinced of only one thing: That Lockyer knows how to waste money.

I would like to send my message to Mr. Lanier and those indignant jurors. It's not from an irate tort professor, but from a scared citizen who is steamed that those "good people" have imperiled his own health and that of his family and friends. None of you have ever done a single blessed thing to help relieve anybody's pain and suffering. Just do the math to grasp the harm that you've done.

 

* * *

 

Much as I disapprove of how the FDA does business, we must enact this hard-edged no-nonsense legal rule: no drug that makes it through the FDA gauntlet can be attacked for bad warnings or deficient design. In plain English, Mr. Lanier, you're out of court before you make your opening statement. You've already proved beyond a reasonable doubt that the fancy diagrams that university economists use to explain why the negligence system maximizes social welfare is an academic delusion that clever lawyers use to prop up a broken tort system.

"To the extent that shareholders were either defrauded or misled," he said in an interview Wednesday, "or kickbacks were given, there should be some liability, to be sure."

For example, Kamenar said the former class members could sue over fraud claims, unjust enrichment, breach of fiduciary duty (if lawyers put lead plaintiffs' interests ahead of the rest of the class) and -- for good measure -- civil Racketeer Influenced and Corrupt Organizations Act violations.

Sharon's withdrawal policy from Gaza is thus a critical first step of turning the struggle from an asymmetrical war of terror back into a conventional standoff between delineated sovereign states. And that can only help a militarily superior Israel.

The Vioxx verdict handed out by a Texas court last Friday underscores the need for far-reaching tort reform in the US. President George W. Bush has made an overhaul of the system one of the pillars of his second-term legislative agenda. Yet the pace of reform has been sluggish and even the proposed measures would barely touch on cases such as this.

 

***

 

Yet it is not the immediate costs to the company which are most damaging, but the crippling legal and financial uncertainty which is built into the system. Under the US's civil litigation system, companies and entire sectors can battle on for years, and indeed decades, as they defend suits case by case and state by state.

 

This prolonged uncertainty imposes huge costs on consumers and businesses, as well as shareholders. With the contours of liability uncertain, companies will tend to avoid risk, and with it investment. In the pharmaceutical industry's case, this may mean pulling back from research on drugs that are sold broadly to general practitioners and focusing on speciality areas like cancer drugs instead, where the public's tolerance for risk is higher.

 

The Vioxx verdict therefore underlines the need for more ambitious tort reform. On the specific issue of medical risk, it is appropriate that companies manipulating clinical trials, or withholding information about side-effects, should face sanction, and indeed possibly criminal charges. Merck for example was warned by the US Food and Drug Administration for misrepresenting Vioxx's safety profile. But when a company has faithfully adhered to the regulatory processes, it should enjoy a greater degree of protection from liability than it does today.

 

The Vioxx case is part of a peculiarly American system of regulation via the courts. It looks as if the balance of power between federal regulators and state court juries needs to be tilted back towards the regulators.

 

Sensitive though it is, Mr Bush should avoid the temptation to leave tort reform to the states, as the potential for inconsistent treatment across jurisdictions itself contributes to the legal uncertainty. He has so far trodden carefully, with a modest curb on class-action suits earlier this year. The fallout from last Friday should serve to embolden him.

nothing since the OJ criminal verdict has shaken my faith in juries as much as the details coming out of the recent verdict against Merck in the first Vioxx suit.

"If you'd like a strictly utilitarian, economic response to that award, start by pricing out what $253 million dollars of life insurance will cost - that is, if you can get anyone to not hang up the phone on you."

Allowing opinion testimony to be given to the jury by unqualified experts,

 

Allowing opinion testimony that was not based on a reliable scientific basis as required by Texas law,

 

Allowing evidence with no relevance to the issues of the case, which unfairly prejudiced the jury, and

 

Allowing undisclosed surprise witness and expert testimony contrary to Texas law.

"We believe that we have strong points to raise on appeal and are hopeful that the appeals process will correct the verdict," said Kenneth C. Frazier, senior vice president and general counsel of Merck. "Our appeal is about fundamental rights to a fair trial" he said, promising to "vigorously defend" the thousands of other Vioxx cases already on file.