Monday, April 14, 2008

To sue or not to sue?

A typical criticism or comment about Americans is that we like to sue. All the time. About everything, including a lot of dumb, baseless lawsuits. But is it possible that there is actually a good side to lawsuits and that citizens in other countries should become more willing to use lawsuits to protect themselves and fix things that are wrong in their country?

Safety, for example. Safety regulations are determined by law and violations can result in fines and other punishments by the government. Even more important might be the fact that any entity that violates safety regulations will also be subjected to a lawsuit resulting in a potentially multi-million dollar settlement for anyone who may have been injured as a result of their violations. The Americans with Disabilities Act (ADA) is often followed because of a fear of lawsuits or by lawsuits brought by people who can't access buildings (much to Clint Eastwood's dismay).

There is also the long tradition of social change brought about by court cases: Brown v Board of Education, which officially ended school segregation back in the 1950s and was later enforced by repeated lawsuits demanding that school districts follow the new law, Roe v Wade legalized abortion, and more recently the death penalty has been outlawed for the mentally handicapped and juveniles, among other examples.

Then I read an article in the New York Times last week about lawsuits brought against drug companies who cover up unfavorable trials or deliberately alter the results of their trials and market the drugs anyway. They deceive the FDA, doctors, and patients. Right now a case against Ortho Evra, the birth control patch, is working its way through the court system. Johnson & Johnson covered up information that showed Ortho Evra exposes women to much higher doses of estrogen than the normal pill does, resulting in sometimes fatal side effects. Drug companies and the Bush administration are promoting a doctrine called pre-emption (oh yeah, that old Bush favorite returns). Pre-emption claims that drug companies can't be sued by people who say they were injured by the drug, despite how much the company itself may have lied, because the FDA is the only entity that can decide what drugs and foods are safe for use.

Why is this so dangerous? Not only because it allows drug companies to get off scot-free for their illegal deception that ended up harming people, but also because the FDA itself is considered to be broken.
A series of independent assessments have concluded that the agency is poorly organized, scientifically deficient and short of money. In February, its commissioner, Andrew C. von Eschenbach, acknowledged that the agency faces a crisis and may not be “adequate to regulate the food and drugs of the 21st century.”

The F.D.A. does not test experimental medicines but relies on drug makers to report the results of their own tests completely and honestly. Even when companies fail to follow agency rules, officials rarely seek to penalize them. “These are scientists, not cops,” said David Vladeck, a professor at Georgetown Law School...

For years, top officials at the agency acknowledged that lawsuits could aid the agency’s oversight of safety issues...

“Our lawsuits are the ultimate check against the mistake made by the government, or fraud made by the companies against the government, or just an underfunded bureaucracy stretched thin,” [Chris Seeger, a lawyer] said.

Remember the Vioxx lawsuits? The makers of Vioxx concealed information that showed that it increased the risk of heart attacks. This has also happened with several anti-depressant medications. Can you imagine what these criminals would do if the threat of any possible punishment was taken away? They would run amok. It would be chaos.

So we've talked about several good outcomes from lawsuits in the US: causing compliance with laws, social change, "fixing mistakes made by the government," and of course old fashioned punishment for the bad guys. I know the downside of lawsuits too, don't get me wrong, I definitely think that we can get out of control with our lawsuits. But I wonder, is it possible that lawsuits could be used for good in other countries too? Perhaps in France? I don't know much about their legal system, but I do know that the Declaration des droits de l'homme (Declaration of the Rights of Man) is considered to be part and parcel of their Constitutional law, and that contains a lot of sweeping statements about what rights we are all entitled to. Can you imagine if the French started to sue based on those principles? For example, if the courts really started to examine how far personal liberty can go until it begins to harm others and must be limited? Maybe I'm just being too American in my belief that lawsuits could fix some of the problems in France, but it's at least an interesting idea.


Le Tigre in France said...

I do think suing is actually quite a good thing, but only in the right circumstances. There are so many bullshit lawsuits people try on just to get some money and it clogs up the courts with all this silly stuff. But for example, my mother fell down in a hotel lobby because of some water and there was no railing to grab onto. She broke her coxus and has had problems with it now ever since. That deserves a lawsuit.

Au Soleil Levant said...

I'm really sorry to hear about your mom's fall, that's terrible. I hope she gets better!