Jackpot Justice Gets New Meaning

Resident Fellow
Ted Frank

Jackpot justice refers to the problem of courts that reward trial lawyers with outsized judgments unrelated to any actual damages. But a recent case in Minnesota gives a whole new meaning to "jackpot justice."

Gary Charbonneau claims that Parkinson's disease drug Mirapex caused him to become a compulsive gambler. Perhaps--the Food and Drug Administration has found a correlation, though correlation is not causation.

All drugs from aspirin on up have side effects; doctors prescribe them because the benefits outweigh the costs.

And lots of people are compulsive gamblers without taking Mirapex; Charbonneau gambled before he took Mirapex; doesn't claim to have become a compulsive gambler until four years after he started taking the drug; and admits that he continued to be a compulsive gambler for months after he stopped taking it.

This is, Charbonneau says, the fault of Boehringer Ingelheim, the manufacturer. If only BI had included more warnings, he wouldn't have lost money gambling. (Yet Charbonneau's doctor never testified that he would have taken Charbonneau off of the drug had the manufacturer told him more.) Indeed, as the first medical reports of a possible correlation came out, BI added warnings to the label, and Charbonneau's doctor kept prescribing the drug.

But trial lawyers make their living telling stories, and a jury bought this one. They awarded $204,000 to reimburse Charbonneau for his gambling losses, much of which came from illegal Internet gambling. (One doubts that any lucky gamblers are offering to turn over their winnings to drug companies. Heads I win, tails don't count.)

Worse, the jury threw in $175,000 for "pain and suffering" and $7.8 million in punitive damages: Apparently, selling a drug that helps people with Parkinson's is something egregious to be punished. Charbonneau finally hit the jackpot.

All drugs from aspirin on up have side effects; doctors prescribe them because the benefits outweigh the costs. There can always be "more" warnings, and can always be accusations that the additional warnings weren't sufficient.

After all, if the doctor knew the patient was going to have a side effect, she would not have prescribed the drug, so the warning must not have been good enough. The manufacturer can solve the problem only by taking every drug off the market, making everyone worse off. Thus, the Food and Drug Administration says that courts should not permit such "failure-to-warn" lawsuits. Lawsuits can destroy the effectiveness of warning labels.

If every manufacturer defensively includes a boxed warning for every possible side effect to avoid the risk of punitive damages, doctors will have no way of knowing which ones are the serious warnings and which aren't. (As it is, does any consumer read the giant packet of fine print that comes with a prescription drug?)

Overwarning can be catastrophic: When lobbyists for trial lawyers hoping to help pending lawsuits successfully pushed the FDA to add boxed warnings to anti-depression drugs alleging a possible correlation between teen suicide and the drugs, use of the drugs dropped substantially--and teen suicide went up. (Turns out depressed teens can be suicidal. Who knew?)

But trial lawyers want to be able to sue manufacturers and punish them with jackpot verdicts even when drug companies comply with the FDA standard.

The Supreme Court will hear a case this November, Wyeth v. Levine, which may decide whether FDA regulations "pre-empt" failure-to-warn lawsuits over drugs.

As even Clinton appointee Justice Stephen Breyer pointed out in a February 8-1 Supreme Court decision about medical devices, if we are to have meaningful safety regulation, those standards should be determined by federal regulators, not by untrained juries who hear only the sad stories of side effects in hindsight without considering the larger policy issues.

But the Supreme Court won't have the last word. Some in Congress want legislation to forbid pre-emption. Such a law would be bad policy that puts trial lawyer profits ahead of safety.

Ted Frank is a resident fellow at AEI.

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About the Author

 

Ted
Frank
  • Ted Frank is a former resident fellow at AEI. He specialized in product liability, class actions, and civil procedure while at AEI. Before joining AEI, Mr. Frank was a litigator from 1995 to 2005 and clerked for the Honorable Frank H. Easterbrook on the Seventh Circuit Court of Appeals. Mr. Frank has written for law reviews, the Wall Street Journal, the Washington Post, and The American Spectator and has testified before Congress multiple times on legal issues. He writes for the award-winning legal blogs PointOfLaw.com and Overlawyered, and the Wall Street Journal has called him a "leading tort-reform advocate."  Mr. Frank was recently elected to membership in the American Law Institute.

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