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Bush's Tort Reform: Government as Friend of Industry

Bush Tort Reform
Executive Clemency For Executive Killers

Friday, February 18, 2005


By Greg Palast


Published in The Observer, Britain’s Premier Sunday Newspaper, Guardian Media Group 
Greg Palast is a leading investigative reporter.  His The Best Democracy Money
Can Buy, 2003, was a New York Times bestseller


For more by Greg Palast go to

It's a great day for the Eichmanns of corporate America. President Bush minutes ago signed the ill-named 'tort reform' bill into law, limiting class action suits. Doubtless, Ken Lay, former Enron CEO, is grinning as are the corporate suite killers at drug maker Merck who are now safer from the widows and orphans of Vioxx victims.


Closing the doors of justice to the ruined and wrecked families of boardroom bad guys is nothing less than executive clemency for executive executioners.

You think my accusation is over the top? Well, please talk with Elaine Levenson. 
Levenson, a Cincinnati housewife, has been waiting for her heart to explode. In 1981, surgeons implanted a mechanical valve in her heart, the Bjork-Shiley, "the Rolls-Royce of valves," her doctor told her. What neither she nor her doctor knew was that several Bjork-Shiley valves had fractured during testing, years before her implant. The company that made the valve, a unit of the New York-based pharmaceutical giant Pfizer, never told the government.

At Pfizer's factory in the Caribbean, company inspectors found inferior equipment, which made poor welds. Rather than toss out bad valves, Pfizer management ordered the defects ground down, weakening the valves further but making them look smooth and perfect. Then Pfizer sold them worldwide.

When the valve's struts break and the heart contracts, it explodes. Two-thirds of the victims die, usually in minutes. In 1980, Dr. Viking Bjork, whose respected name helped sell the products, wrote to Pfizer demanding corrective action. He threatened to publish cases of valve strut failures.   A panicked Pfizer executive telexed, "ATTN PROF BJORK, WE WOULD PREFER THAT YOU DID NOT PUBLISH THE DATA RELATIVE TO STRUT FRACTURE." The company man gave this reason for holding off public exposure of the deadly valve failures: "WE EXPECT A FEW MORE." His expectations were realized. The count has reached eight hundred fractures, five hundred dead-so far.  Dr. Bjork called it murder, but kept his public silence.

Eight months after the "don't publish" letter, a valve was implanted in Mrs. Levenson. In 1994, the U.S. Justice Department nabbed Pfizer. To avoid criminal charges, the company paid civil penalties-and about $200 million in restitution to victims. Without the damning evidence prized from Pfizer by a squadron of lawyers, the Justice Department would never have brought its case.  Pfizer moans that lawyers still hound the company with more demands. But that is partly because Pfizer recalled only the unused valves. The company refused to pay to replace valves of fearful recipients. 

As we've all learned from watching episodes of LA Law, in America's courtrooms the rich get away with murder. Yet no matter the odds for the Average Joe, easy access to the courts is a right far more valuable than the quadrennial privilege of voting for the Philanderer-in-Chief. This wee bit of justice, when victim David can demand to face corporate Goliath, makes America feel like a democracy until today, when our President blocked the courtroom door with his 'tort-reform' laws.

We can even vent our fury on the führer. I have in my book a copy of a letter from Adolf Hitler. In it he's agreeing to Volkswagen's request for more slave laborers from concentration camps. This evidence would never have come to light were it not for lawsuits filed by bloodsucking lawyer leeches, as the corporate lobby would like to characterize class-action plaintiffs' attorneys. In this case, the firm of Cohen, Milstein, Hausfeld & Toll, Washington, DC, outed this document in a suit on behalf of slave workers whose children died in deadly "nurseries" run by the automakers VW, Ford, Daimler and others. (If Hitler had been captured, he might have used the defense, "I was only taking orders . . . from Volkswagen.")

But the Nazi profiteers have their friends in the corporate lobby. Victims' rights are under attack. Waving the banner of "Tort Reform," corporate America has funded an ad campaign portraying entrepreneurs held hostage by frivolous lawsuits. But proposed remedies stink of special exemptions from justice. One would give Pfizer a free ride for its deadly heart-attack machines. A ban on all lawsuits against makers of parts for body implants, even those with deadly defects, was slipped into patients' rights legislation by the Republican Senate leader. The clause, killed by exposure, was lobbied by the Health Industries Manufacturers Association, which is supported by-you guessed it-Pfizer.  At their best, tort lawyers are cops who police civil crime. Just as a wave of burglaries leads to demand for more policemen, the massive increase in litigation has a single cause: a corporate civil crime wave.  And today, the corporate killer gang received executive clemency from our President. They don't call him the 'Chief Executive' for nothing.

A decade ago, after eighteen buildings blew up in Chicago and killed four people, I searched through the records of the local private gas company on behalf of survivors. What I found would make you sick. I saw engineers' reports, from years earlier, with maps marking where explosions would be likely to take place. The company, People's Gas, could have bought the coffins in advance.  Management had rejected costly repairs as "not in the strategic plan." It's not planned evil at work here, but the enormity of corporate structures in which human consequences of financial acts are distant and unimaginable. 

I admit, of the nearly one million lawyers in the United States, you could probably drown 90 percent and only their mothers would grieve. But as Mrs. Levenson told me, without her lawyer and the threat of a class action tort, Pfizer would not have paid her a dime of compensation.  The tort reformers' line is that fee-hungry lawyers are hawking bogus fears, poisoning Americans' faith in the basic decency of the business community, turning us into a nation of people who no longer trust each other. But whose fault is that? The lawyers? Elaine Levenson put her trust in Pfizer Pharmaceutical. Then they broke her heart. 


Greg Palast is author of the New York Times bestseller, The Best Democracy Money Can Buy, from which this is taken. For more information go to



Gardiner Harris New Your Times News Service

Sand Diego Union-Tribune, 12/6/04, page A1


“Dozens of former and current FDA officials, outside scientists and advocates for patients ay agency’s efforts to monitor the ill-effects of drugs on the market are a shadow of what they should be because the White House and Congress forced a shotgun marriage between the agency and industry years ago [1992] for the rich dowry that industry offered [campaign contributions]. 

    Under the 1992 agreement the industry pledged to give the agency millions—this year, $200 million—but only if the agency spent a specified level of money on approvals of new drugs.  Since then, as congressional support sank, the agency has cut everything else but new drug reviews.  In the past 11 years, spending on reviews has increased from about half to more than four-fifths of the agency drug center’s budget.  Among the priorities that took the worst hit was ensuring the safety of the drugs that patients are already taking. . . . The FDA cannot require drug makers to undertake new safety tests once a drug is approved, so tracking the safety of drugs already on the market is the agency’s responsibility. . . . Indeed, the agency now relies almost entirely on the willingness of drug makers to report problems that crop up after a drug has been approved to ensure the safety of the nation’s drug supply.  {This means that unless they start receiving letters from doctors about repeated side affects, the drug company won’t know of the problem.  It is easy for a doctor to recognize in patients taking one of the Statins dissolving muscles as being drug induced, but not heart attacks.  Even if they occur at twice the normal rate, his sample of coronary events would likely be too small to notice; moreover he would probably attribute an increase to a random cluster, rather than the Statins.}  

      [T]his dependency has gradually worn away at the agency’s willingness to confront drug makers, making it timid and leaving patients vulnerable.  “This is not just about dollars,” said Dr. Jerry Avron, a professor at Harvard Medical School and the author of Powerful Medicines, “it is a cultural issue in which the agency feels it can’t pressure drug makers.”  



Stats from end of year (04) MSTL (Medical Technology Stock Letter):


Of the 400 drugs approved from 98 to 03, only 53 were of new compounds and only 15 were shown to be better than existing treatments. 





With each new drug there is a chance of duplicating the VIOXX experience.




1.          3/4th of the profits go towards marketing—all those TV adds, magazine adds, perks to doctors, soft money to politicians, medical journal adds, and like.

2.          Of the research most of it is market driven; mainly in the form of trying to make a knockoff of a competitor’s drug.  This brings us back to the opening numbers where the knockoff is with a few exceptions not significantly better than the existing drug.

3.          The funding arrangement passed by Congress in 1992 entails that most of the funds raised by the FDA from the drug companies and it is for the very drugs that they are reviewing (  There is nothing left for comparative studies are long-term follow ups. 

With so many drugs on the market, doctors are less likely to knowingly select between the choices.