More Advice for the President

A few weeks ago I humbly suggested that Bush could revive his presidency and salvage his party's fate in the mid-terms by taking a tough stand on illegal immigration. I offered to help them formulate this message but, astonishingly, no one ever contacted me. How could this be - could they be getting better advice elsewhere?

Well, perhaps so. Greg Cochran points me to this column by WaPo's Sebastian Mallaby recommending that Bush lift his sagging ratings by defending Merck in its Vioxx troubles.

Desperate moments call for desperate remedies. President Bush should seize upon the monstrous Vioxx litigation to champion a cause that he believes in: the cause of tort reform.

That's right - support the beleagured pharmaceutical giant against these nasty heart-attack victims. Here's the crux of his argument:

Open societies flourish because they are driven by intelligence and information; the U.S. tort system creates an enclave of idiotic whimsy in the heart of the most open society in the world. But the Vioxx litigation does not merely celebrate dumb prejudice. It's extraordinarily expensive. For this year alone, Merck has set aside a legal war chest of $685 million. The Vioxx lawsuits could eventually cost it between $10 billion and $50 billion.

Merck, unfortunately, was hardly operating in the open: holding off on reporting bad results, making up excuses for increased coronary incidence, and threatening to sue anyone reporting the studies' inescapable conclusions. While the tort system could use some serious re-thinking, the irony is that if any situation argues in favor of current tort law, it is this one - where an injustice has been committed by a huge corportation and neither the victims nor society have any other recourse for seeking restitution.

As far as the huge costs involved, it has been Merck's stategy to fight each case one by one and not seek a settlement. Maybe they can lower the final bill with a settlement. But if the concern is the bankrupting of Merck, Bush could always go to Congress and ask them to intervene and force a settlement, kind of like what was done for the airlines after 9/11. Don't hold your breath - this would not be very likely in an election year - though not as unlikely as Mallaby's suggestion. The title of this column is "No Defense for This Insanity" - the only insanity here is Mallaby's political advice.

Note - for more on the general topic of Big Pharma and legal/moral responsibilities, see this lively debate at Gene Expression.