We’re not slow readers. Really.
We’re just busy, and we just now got around to Richard Epstein’s counterpoint to Nagareda in the first issue of the Journal of Tort Law. Richard Epstein, “Why the FDA Must Preempt Tort Litigation: A Critique of Chevron Deference and a Response to Richard Nagareda,” 1 J. Tort Law __ (2006). Here’s a link to the on-line abstract, which is the best we can do.
Like Nagareda, Epstein says some things that we can use in briefs and some that we can’t. Overall, he’s a big fan of preemption: “[T]he most likely overall evaluation of the FDA . . . is that it engages in excessive regulation, and its adverse consequences are compounded by the intervention of an erratic tort system that is expensive, unreliable, and highly prone to error and manipulation.”
“The guiding principle of preemption” is based in part on simple morality: “the legal system, speaking through two independent sovereigns, cannot say to a person subject to both, ‘damned if you do, and damned if you don’t.'”
Epstein writes in favor of the pro-preemption Sixth Circuit case of Garcia v. Wyeth-Ayerst Laboratories, 385 F.3d 961 (6th Cir. 2004), and he criticizes the later Second Circuit case that rejected Garcia — Desiano v. Warner-Lambert Co., 467 F.3d 85 (2d Cir. 2006).
Epstein pens a few words that defendants in drug cases are unlikely to rely upon. He does not favor giving Chevron deference to agency statements about preemption (which is not helpful for defendants arguing in favor of FDA preemption in today’s world).
But Epstein does provide this little gem for any readers of this blog who are currently defending SSRI/suicide cases: Assume “it is not possible to isolate in advance any subgroup of SSRI users that is ‘at risk’ for” the adverse event of suicide. “On this scenario, the result is easy. Every person who takes an SSRI trades in some large risk of suicide and other depressive behavior in exchange for a small risk of suicide and a far better life style and prognosis to boot. That deal is attractive from the ex ante perspective to any sane person . . . .”
That may be an attractive response to plaintiffs who insist that, if they had only been warned that SSRIs induce suicide (which they don’t, of course), they never would have ingested the drug.
If you’re doing battle in the preemption wars, take a look at Epstein’s piece.