While I have been on the road plying my trade, the U.S. Supreme Court has been active in issuing decisions that many folks believe will change the nature of our democracy.
The big news, of course, has been United States v. Windsor, U.S. Supreme Court, No. 12-307, and Hollingsworth v. Perry, U.S. Supreme Court, No. 12-144, addressing gay marriage.
We now know that the United States must respect the will of the states, perhaps even when those states permit gay marriage. To some this is revolutionary, and to others this hearkens back to a time when our democracy was very young and many considered the nation to be nothing more than a mere accumulation of nation-states. Others say that notion was always hooey, and that the Constitution was intended to celebrate “we the people” and not “we the states.”
Other decisions that have received media attention concern voting rights. Shelby County v. Holder has drawn its fair share of critics and supporters. It is hard to argue that the South continues to need closer supervision of elections than the rest of the states.
It is not at all difficult to make the case for the proposition that the entire country could use some cleaning up of its electoral process. The federal supervision of elections in the South would be a good thing for the entire nation in order to ensure that the fundamental mechanics of our electoral process work fairly and impartially. Witness Bush v. Gore, where the U.S. Supreme Court handed an election over to the candidate not popularly elected because the court did not like the Florida recount system. States’ rights were not evident in that remarkable decision.
One case that has slipped under the radar for most people is Mutual Pharmaceutical v. Bartlett, effectively giving generic drugmakers a free pass when they harm consumers due to unsafe drugs that clearly required stronger warnings.
One of the biggest industries in the United States — Big Pharma — is pushing drugs on citizens of the United States through direct advertising. Demand for potentially unsafe pharmaceuticals is created by the advertising industry working hand-in-glove with the pharmaceutical companies. The drug companies not only sell directly to often-misinformed consumers but they feed their drugs to the medical community.
Free trips, financial payments, grants to doctors and hospitals and free samples have often driven the prescribing of pharmaceutical drugs in this country. Every doctor you talk to will deny this, but after a glass of wine or two, members of the medical community, as well as hospital officials, would likely acknowledge that the pharmaceutical companies are key players in connection with unreasonable increases in the cost of health care and the cause of many ailments that are expensive to treat. Vioxx, Byetta, thalidomide and many drugs too numerous to mention have harmed their fair share of people. The pharmaceutical industry has received a considerable degree of immunity from lawmakers.
The Food and Drug Administration is empowered to determine which drugs are safe and what can be marketed to the public. In my view, the FDA is nothing more than a revolving door through which industry representatives pass. Drug manufacturer employees move in and out of government as if going through a turnstile at an amusement park.
The FDA’s supervision is the floor, not the ceiling. It is a weak excuse for a spineless agency that not only permits but even encourages unsafe marketing of drugs. Once the FDA has approved a particular drug, the public right to be compensated for the negligence or danger in promoting the drug and failing to warn about its unsafe side effects is severely limited, if not eliminated altogether.
The Supreme Court’s decision in Mutual Pharmaceutical determined that generic drug manufacturers, which make up 80 percent of the market, get a free pass. Since generic drug manufacturers have not created the drug in the first place, they are not responsible for selling or marketing an unsafe product. This, of course, is a ridiculous doctrine and very much at odds with the American system in general.
In virtually every other industry, if somebody knowingly sells an unsafe product that harms consumers, they are financially accountable. Only in the drug industry and a few selected others can the wealthiest of fat cats make money off someone else’s product and never pay a price for their neglect or the harm they caused. This is a decision that can only be described as unconscionable.
Without question, the decision in Mutual Pharmaceutical will impact more Americans on an everyday basis than any of the decisions that have received so much publicity recently. There are more and more gay marriages in the United States. There are more gay people who have come out of the closet. A Republican friend of mine was correct when he said that gay rights are the civil rights of the 21st century. Likewise, guaranteeing fair access to the ballot box is extremely important. Whether an individual, for example, must show ID to vote is hotly debated, but most people find themselves able to comply with voter ID laws.
Most people are not in a position to protect themselves from dangerous drugs. This is not an issue that has what politicians like to call “sex appeal” for the average voter. We may be concerned about changing mores in society, voting rights and other issues that touch home on a day-to-day basis. We are far less informed and knowledgeable concerning the fact that the courts have effectively negated the Seventh Amendment right to trial by jury. Jury trials are essentially gone, and we have turned over the regulation supervision of dangerous chemicals found in drugs to a bureaucracy that acts impotently.
We no longer can hale into court those who routinely violate our rights because our conservative U.S. Supreme Court, frequently with the support of the liberal arm, has ruled that big industry is more important than, and better than, big government. Individual accountability, which only occurs when a negligent or careless party can be brought into court, is a thing of the past.
I am reminded of “Big Yellow Taxi,” the old Joni Mitchell song, when she sang, “You don’t know what you’ve got ’til it’s gone.” Our rights have indeed slipped away, with barely a murmur from the consumer community. The Supreme Court has been most influential in assuring that rights lost under the Seventh Amendment right to trial by jury never return.
Cliff Rieders, who practices law in Williamsport, Pa., is a past president of the Pennsylvania Trial Lawyers Association and a member of the Pennsylvania Patient Safety Authority. None of the opinions expressed necessarily represents the views of these organizations.