Let’s talk about tugboats. You may wonder – How do tugboats affect me? Actually, a tugboat is at the core of a legal doctrine that guided tort law (the branch of law that governs lawsuits for damages) for sixty years. The TJ Hooper was a tug operating in New York harbor. It was towing a barge when a storm came along and sank the tug and the barge. The plaintiff (person bringing the suit) claimed the tug operator was negligent for not having weather radios, which would have allowed the TJ Hooper to stay out of harm’s way. The owners of the TJ Hooper defended themselves by saying “prevailing practice” was to not have radios on tug boats. In other words, “No one else is doing it – why should we?”
The Court held that a defendant could be liable for negligence if technology was available to make an activity safer, even if that technology was not a custom in the industry.
This was a huge and important development in tort law. It caused tort law to become promote safety throughout society. Companies doing business could not stick their heads in the sand and ignore developments that would protect consumers, workers and others from unsafe products, work practices and other activities. Thanks to the TJ Hooper, our society became safer, as (for example) virtually all automotive safety engineering came as a result of either lawsuits or the threat of lawsuits. You didn’t think the federal government was the primary force behind seat belts, head rests, airbags and other safety engineering on automobiles, did you? And before you credit the auto manufacturers, remember they resisted every safety change with the full force of their pocketbooks. You only have to look at how the American automobile industry is kicking and screaming over increasing fuel efficiency to see how wedded they are to their “bottom line.” If you or a loved one survives a crash due to safety engineering of an automobile, thank a lawyer, and think of the TJ Hooper.
But that doctrine has been under attack by the “tort reformers” for years. Two places you can see it most clearly are in medical malpractice and product liability law.
In medical malpractice, the central question regarding a treatment or response to a medical condition is whether the “standard of care” has been met. “Standard of care” is a fancy way of saying, “everyone does it this way.” In medicine, that is enough to exonerate the doctor, even if there are new and better treatments available. In court, you are only entitled to mediocre medicine, not the best care available.
In the product liability arena, if you challenge the way a product is designed, the product manufacturer can plead “state of the art,” and say, in effect, “That’s the best we can do.” To disprove this, you must be able to show a safer alternative design. In other words, you must reengineer the product. That’s a tall order when the product is as complex as an automobile. Product liability law was designed to provide for “strict liability” when a product was found by a jury to be “unreasonably dangerous.” That principal, which permitted juries to find products dangerous and not worthy of sale on the market, went by the wayside with the requirement that you must redesign the product in a safer (and economically viable) manner in order to attack its design.
Now, what does all of this have to do with drugs? Plenty.
Recently, the Texas appellate courts have struck down two verdicts against the drug Vioxx. Merck, the manufacturer of the drug, took Vioxx off the market and set aside billions of dollars to pay claims for people injured by the drug. This gives you an idea of how the company perceived the danger from Vioxx…or at least the danger posed by lawyers holding them accountable. Two plaintiffs went to court and proved that Vioxx was dangerous, in that it caused blood clots that led to heart attacks. They also proved that Merck knew all about these dangers and hid the damaging information from the FDA. The juries held Merck accountable, and the verdicts reflected the anger of the jurors – regular folks selected by a very detailed process to eliminate people with a bias or prejudice against drug companies – and the magnitude of the harm caused by Vioxx to these two plaintiffs.
But, Merck had an ace in the hole. They had every confidence they would win on appeal. Why? Because of two reasons. First, our appellate courts are stocked with Republican judges who are on the side of big business and insurance and against consumers, workers and others who bring lawsuits for damages. It is not just that these judges are Republicans. They were selected for their position (either by appointment or by nominating committees within the Republican party) because they were going to be reliable foot soldiers in the war on tort law being fought in Texas appellate courts. This branch of the Republican party called their efforts “tort reform,” and they blamed “trial lawyers.” But their real victims, the people they were really going after, were you and others like you who were going to file lawsuits for damages. Their goal was to slam the courthouse door shut in your faces. Trial lawyers were just collateral damage.
How did they accomplish this? With a doctrine that started in the Supreme Court of the United States called the “Daubert Doctrine.” That doctrine was expanded in Texas, and the upshot is this: If you are trying to prove a scientific principal, such as proving that a drug causes a person to have a heart attack, your evidence must survive an analysis intended to eliminate all but the most mainstream, accepted science. The pro-Daubert forces argued they were trying to get “junk science” out of the courtrooms. What they really wanted was to raise the bar on science in the courtroom above the “reasonably reliable” standard followed for decades by our courts to a standard that can only be met by showing a scientific principal has been independently tested outside the litigation arena and is generally accepted in the relevant scientific community.
Well, let’s think about that. Guess who runs or sponsors virtually all of the scientific research on drugs? That’s right – the drug companies. So how is someone going to prove that Vioxx causes heart attacks? First, they need to have enough money to finance a research study that proves that cause and effect. Then, they must have the ability to have that research published in a mainstream medical journal. That is certainly within reach…if you are a drug company.
So, if the TJ Hooper case was fought today, the plaintiff might not win. The tug company would argue that the tug was the state of the art, and the plaintiff would have to prove that the tug could be redesigned with a radio that would prevent it from getting caught in bad weather. To back up this allegation, the plaintiff would have to bring scientific evidence – the type that would pass Daubert scrutiny – that had the TJ Hooper had a weather radio, it would have learned of the storm in time to get out of harm’s way. The fight would not be over who was right, or whether tug boats could be made safer. The fight would be over who had the experts who would pass the Court’s scrutiny. The opinion of the jury, whose role throughout history has been to represent the conscience of the community, would be collateral damage.
