Legal Reform

How liability lawsuits drive up drug prices, stifle innovation, and harm patients

A single drug can cost up to 2 million dollars per treatment. In the light of COVID-19, patient groups and activists have been using the crisis of the moment to call for capping drug and vaccine prices and cracking down on barriers to access for patients. In developing countries, large parts of drug prices are caused by tariffs, taxes, and other regulatory barriers. The United States, on the other hand, has the highest per-capita drug expenditure and drug prices in the world.

Bringing a drug to the US market is usually critical for a company to recoup the roughly 2 billion dollars of development costs per successfully launched medicine. At the same time, the country’s unique legal liability and injury system (called tort law) leads to higher drug prices without necessarily creating benefits for patients. Once a drug has passed the rigorous approval process demonstrating safety and efficacy to the US Food and Drug Administration (FDA), it is still subject to various liability laws at the state level.

In the last two decades, Pfizer set aside a whopping 21 billion dollars for settlements following tort lawsuits against the diet drug Fen-Phen. Those who were harmed by the drug were able to seek legal recourse. That said, thousands and thousands of people who were not harmed by the drug were also able to seek compensation. So much so that it is assumed that at least 70% of the payouts went to claimants who weren’t harmed at all by the drug.

Johnson & Johnson was ordered to pay 8 billion dollars to one patient for side effects caused by the antipsychotic drug Risperdal. These are just a few examples of a plethora of multi-billion-dollar payments drug companies have been compelled to make after being dragged to court, despite them being deemed safe by the FDA.

Patient advocates who are passionate about lowering drug prices in the USA should take a serious look at liability laws and how their misuse inflates prices. Abolishing liability beyond FDA requirements could reduce drug prices in the United States by 12 to 120 billion dollars a year and therefore give many more patients access to medicines. 

In 2019, US patients spent a total of $360 billion on prescription drugs. Between 3 and 30% of this amount could be freed up for other treatments or price cuts if liability rules for FDA-approved drugs would be reformed. This change might seem radical, but it is what Congress has approved for FDA-approved medical devices. A similar preemption was extended to vaccines in the late 1980s via the Vaccine Injury Compensation Program.

Another impact of lawsuits following product withdrawals of FDA-approved drugs is that they negatively affect new investments in development. Pfizer’s settlement for Fen-Phen alone could have been used to bring 10-15 new innovative and life-saving drugs to patients.

Rather than using these financial resources for more research and development, or to lower drug prices, pharmaceutical manufacturers have to fight law firms who enrich themselves by abusing the US tort system. Tort law on top of FDA regulation is not just stifling innovation, but also an expensive way to compensate for the harm caused to patients. Paul H. Rubin suggests that the costs of settlement for the legal process account for half of the total settlement fees. Reducing this burden could increase the speed of new drugs being developed and reduce their price. Critics of tort reform will say that changing liability rules will endanger patients, but that’s far from the truth. A 2007 study shows that tort law reform in some states led to a total of 24,000 fewer deaths due to price reductions and the arrival of new innovative drugs. That’s something to keep in mind.

As long as we keep existing tort law on top of the FDA approval framework, consumers are being de facto forced to pay a massive markup on drugs in order to get insured against potential side effects. This is a very expensive and inefficient way of insuring patients against harm. 

A smarter way of designing such a compensation scheme is to either expand the vaccine compensation scheme to pharmaceuticals or to allow consumers to personally purchase insurance against such damages. This could, for instance, be supplementary insurance on top of the patient’s existing health insurance plans. Such a system would allow patients who opt-in much lower fees than the existing mandatory tort law system.

Exempting drugs from state tort law would be an easy step to reduce drug prices without putting patients under more risk. American patients would save billions a year and be able to access more treatments than they can currently. This will lead to a net benefit for patients and the health of the nation. Why not give it a try?

“Die Schuldigen nicht in den Skihütten von Ischgl suchen”

Die weltweite Verbraucherorganisation Consumer Choice Center nimmt die Gastwirte im österreichischen Party-Hotspot in Schutz.

Après-Ski im Fokus: Der Gastro in Tirol wird vorgeworfen, zur Corona-Ausbreitung beigetragen zu haben

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Can you sue the ski hut where you contracted coronavirus?

European nations may be opening up their economies throughout the month of May, but that grand opening is likely to be dogged by the wave of COVID-19-related lawsuits.

We learned over the weekend that over 5,000 international tourists to the ski town of Ischgl, Austria are in the process of filing a lawsuit against the town and public officials. There are also being considered against ski resort owners in the area.

The lawsuit is being prepared by the Austrian Consumer Protection Association, which claims health authorities and the bar owners were “negligent” in not shutting down ski huts and restaurants earlier. They launched a website asking potential plaintiffs to share their information in order to join a future class-action lawsuit.

Often described as the “Ibiza of the Alps,” Ischgl made international headlines as an epicenter of the coronavirus crisis. At one particular venue, Kitzloch, a German bartender reportedly tested positive for coronavirus on March 7th. The bar closed its doors two days later. The town went into lockdown on March 13th. Tyrolean Governor Günther Platter then issued a province-wide quarantine on March 18th.

By the end of March, nearly 1,000 cases across Europe could be traced back to the resort town, and as many of 1,500 to the region itself.

The complaint states that the delay from the first known case until the ski town was ordered into lockdown was “negligible” and that authorities should have “known of a threat of mass infection”. Some have even blamed “greed” and “toxic business” as the reason local officials and business owners waited before shuttering doors. But as covered above, ski lodges and restaurants shut before provincial and national lockdowns ordered them to.

The first death in Austria from the coronavirus wasn’t until March 12, after which the town of Ischgl went into complete lockdown. The national lockdown went into effect four days later.

Is this enough to make a case against ski huts and villages where tourists contracted coronavirus?

As my colleague Linda Kavuka has pointed out, the current pandemic is a living and breathing example of Force Majeure, an Act of God that indemnifies certain parties in lawsuits and breaches of contract because it is simply “beyond the control” of any person or organization.

That said, there are legitimate questions to be asked: should ski towns have shuttered their doors and closed down bars and restaurants earlier? Likely. But we simply didn’t have the same information then as we do now.

And considering the very disturbing revelations about obfuscation of information by both the Chinese Communist Party and the World Health Organization at the outset of this crisis, it’s hard to place blame solely at the feet of local mayors and ski hut owners in the Alps.

(That’s why the U.S. states of Mississippi and Missouri have filed lawsuits against China.)

Of course, the fact that any skier or holiday goer would contract the coronavirus at a place where they were supposed to be enjoying themselves is a tragedy. Many people unknowingly spread the virus, were hospitalized themselves and died as a result. No one can excuse that loss of life and the grief that ensues.

But what we must hold uphold, in this situation and many more to come, is the facts and cases we allow to enter our legal system and our courts.

Classifying or assigning claims of negligence in the pandemic could likely mean thousands of unwitting public officials, business owners, and individuals will be held liable for what they didn’t know at the time. That would be a dangerous precedent.

We’ve often covered the incredibly litigious culture in the United States’ tort law system and articulated to reasons to reform it. Now, it seems, we’ll have to spread that same message throughout the European continent.

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix series reveal injustice and junk science are plaguing our nation’s courts

true crime op-ed

With so many of us doing our part to stay at home, it’s been the perfect time to dive into binge-worthy Netflix series.

For many, it’s been Tiger King or reruns of Friends, but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise then that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for a fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers. In “The Innocence Files,” it was a controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers, and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics. Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a U.S. District Court in New Jersey is currently reviewing whether submittedscientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence. Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they’ve been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it’s the lives of innocent men and women.

As citizens, taxpayers, and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Netflix Series Reveal Injustice and Junk Science Are Plaguing Courts

With so many of us doing our part to stay at home, it’s been the perfect time to dive into a binge-worthy Netflix series.

For many, it’s been “Tiger King” or reruns of “Friends,” but some of the more interesting series deconstruct the American justice system and its complexities: innocence or guilt, truth and facts, and institutional bias.

Because television series allow directors to carefully examine a story and interview dozens of witnesses and experts, audiences have become addicted to the very real characters dealing with tragedy and the inadequacies of our courts.

Shows such as “Making a Murderer” and “The Staircase,” in which their principal characters cling to innocence, inspired millions to ask the simple question: Is the American legal system just and can it deliver justice? What happens when experts lead juries and judges astray?

It should be no surprise, therefore, that miscarriages of justice and tainted evidence, mixed in with biased scientific evidence, are not just fodder for documentarians but are represented in thousands of cases that don’t get their own TV deal.

Our binge sessions allow us to rummage through the hundreds of examples of “junk science” that has been taken for fact before judges and juries, sending innocent people to prison or resulting in multi-million-dollar lawsuit settlements to tort injury lawyers.

In “The Innocence Files,” it was controversial “bite mark” analysis that sent an innocent man to death row for nearly 16 years. Earlier this year, Washington Post writer Radley Balko examined the very bogus forensic science that has plagued our nation’s courts: bite mark analysis, tire treads, ballistics evidence, carpet fibers and more.

One tool our legal system has devised to counter bogus science, however, is the process of a Daubert standard, an eponymous process from a Supreme Court trial that seeks to classify expert testimony and evidence.

Daubert hearings empower judges to examine the gathering of evidence and whether it should be allowed in court cases. And this applies to broader scientific evidence beyond simple forensics.

Balko mentions one D.C. judge’s Daubert ruling on ballistics specifically, calling into question the black-or-white conclusions such science could produce. That’s inspired lawyers around the country to ask for Daubert rulings in their cases.

One such example in the headlines is whether or not baby powder, an essential product for new moms and dads and a staple of the female hygiene industry, contains cancer-causing minerals such as asbestos.

Rulings on both sides have awarded up to $4.7 billion to plaintiffs suing pharmaceutical and beauty giant Johnson & Johnson. Select scientific evidence, and whether it can be admitted as evidence at trial, is at the heart of these cases.

To that end, a New Jersey district court is currently reviewing whether submitted scientific evidence that purports a link between talc, a main ingredient of baby powder, and various cancers should be allowed as evidence.

Thus far, major independent studies have found no causal link, including evaluations by the American Cancer Society and a recent study from the National Institutes of Health.

But expert witnesses brought in by the plaintiffs have conducted studies that say the opposite. Some of those studies have yet to be peer-reviewed or replicated, but they have been admitted regardless. Which evidence will get the light of day? That is what the judge will have to decide.

In this civil trial, millions of dollars and reputations are at stake. In so many others, it is the lives of innocent men and women.

As citizens, taxpayers and consumers, one major concern with our justice system should be that only the most rigorous and reputable science be admitted as evidence. Only incontrovertible truth and seasoned scientific inquiry should sway juries, not evidence that can be easily debunked or will be easily refuted years later.

If we uphold that as our standard, we can strive toward the legal reform we truly deserve, both for those accused of crimes and those in the crosshairs of civil disputes. That’s the only way we’ll achieve true justice in our nation’s courts.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

Battle of the Experts: Judge tosses portions of testimony in J&J talc trial

For the last year, we’ve dedicated a good amount of space in our campaigns advocating for significant reform when it comes to both the U.S. tort law system and the science that is used in courts.

With most courts closed due to COVID-19, that afforded us an opportunity to better dive into one case that’s grabbing headlines: one of the many talc lawsuits against Johnson & Johnson, which we’ve written about before.

Plaintiffs in multiple lawsuits claim their baby powder products contained elements of asbestos in the talc, the main ingredient in hundreds of cosmetic products, food additives, and lubricants, and therefore can cause cancer.

Because these lawsuits have been inundated with scientific testimony from all sides, a judge in a Federal District Court in New Jersey held a Daubert hearing, examining the methodologies and credibility of the science presented in the case.

For those interested in countering junk science in the courts, this is a big one.

The Daubert opinion, written by Chief Judge Freda Wolfson, sheds a lot of light on the process of determining whether certain expert analysis can be entered as evidence for juries to consider.

In this specific case in New Jersey, all experts from the plaintiff-side who had part of their testimonies thrown out because their methodologies were questionable or they made claims they couldn’t back up. All defense witnesses will be heard without reservations.

Overall, there’s a lot of “Battle of the Experts” here, and it makes for fascinating reading.

There was a lot of debate about the strength of weakness of “epidemiological studies” – tell me if you’ve heard about those recently – and about whether expert witnesses were basing their testimonies on “subjective belief or unsupported speculation”.

Specifically, one of the main witnesses says talcum powder causes inflammation in certain cells, and then uses that to claim it’s carcinogenic. Chief Judge Wolfson torches him for his claim without causation.

“For all these reasons, the Court finds that Dr. Saed’s opinion that talc causes ovarian cancer is unsupported by the findings of his study—which can only arguably demonstrate that use of talcum powder causes inflammation in ovarian cells.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 24

Second, because there was no transformation of the cell under experimentation, which is usually how we can prove a link to cancer, the judge called his conclusions “unreliable”.

What is more, Dr. Saed’s findings with respect to CA-125 further demonstrate that his opinion with respect to ovarian cancer causation is unreliable.

Chief Judge Freda Wolfson, Daubert opinion, pg. 56

The second main expert witness gets knocked down for producing scientific experiments that can in no way be replicated. The judge points out that each additional attempt at replication came up with a negative for asbestos, which is claimed to be the carcinogen in focus.

“Without that information, which is internally created by MAS, reproducing Dr. Longo’s test under the PLM would not be possible, and hence, the testing is unreliable…J-3’s PLM analysis was negative for asbestos for each sample.”

Chief Judge Freda Wolfson, Daubert opinion, pg. 23

It’s obviously very difficult for courts to examine and establish good science from bad science.

That’s why Daubert hearings are supposed to weigh methodologies, like disproven bite-mark analysis or tire tracks (as many Netflix series are now exposing).

A lot of junk science is taken as fact because it’s in the courtroom, and that’s wrong. That’s exactly what was explained to us last week on Consumer Choice Radio by Jerry Buting, the famed attorney of Steven Avery from the series Making a Murderer.

What we know is that science is a powerful tool to use in lawsuits that affect millions of consumers or innocent people’s lives, but it can be flawed and have bad consequences.

For that reason, we need good legal reform in each state’s tort system to ensure we can uphold good scientific evidence. Justice depends on it.

A full embed of the Daubert opinion can be found here:

Covid-19 will help us identify which regulations are holding back productivity and innovation

At a time like this, those of us who believe in free markets and limited government face challenges in justifying adherence to those principles. It is hard to argue against governments doing “whatever it takes” to combat the spread of the disease and save lives and livelihoods. In fact, as my colleague Christopher Snowdon set out in the Daily Telegraph last week, there is no need to make such arguments. There no inconsistency insupporting individual freedoms in normal times and acceptingcoercive measures by the state in a public health emergency.

Similarly, the massive expansion of the state comprised in the chancellor’s rescue package is broadly welcome for giving people the assurance they need that their homes, incomes and businesses will have some protection in highly unusual circumstances. However, there are many areas where reductions in government intervention should be urgently pursued. 

The New York Times reported that a biotech lab had carried out tests and identified cases of Covid-19 in the Seattle area, well before it was known that the virus had taken hold in the United States. The lab did not have the correct accreditations for this activity from the FDA and was ordered to cease testing. The regulators in the US have since relaxed their position on this, but the question must surely be asked, what was the purpose of the restriction in the first place and how can it be right that it applied so strictly that it actively worked against important research at a vital time?

Europe is also suffering under the burden of pointless bureaucracy in healthcare: the Consumer Choice Center has highlighted that 20 countries in Europe don’t allow online ordering of prescription medicines and 18 require even non-prescription medicines like paracetamol to be sold in pharmacies only. Thankfully the UK is not in the guilty groupof countries in either case, but we still have many regulations that are holding people back from getting the support that they need.

Some steps in that direction are being taken here. The Coronavirus Bill, published yesterday, gives the government emergency powers, but it also suspends various regulations, like the ban on recently retired doctors from returning to work more than 16 hours per week. It reduces the administration tasks and paperwork that health and care workers have to carry out – surely welcome at any time and not something that should take a global crisis to enact.

The Department for Housing Communities and Local Government has announced that planning rules will be relaxed so that pubs and restaurants can operate as hot food takeaways. These are the kind of rules that inspired the hashtag #NeverNeeded, urging Twitter users to identify regulations that are holding back efforts to counter the virus and were surely never needed in the first place. 

Health Secretary Matt Hancock tweeted that people and organisations should not feel restricted from doing what they need to do to help people because of data protection laws. This is an example of a regulation (the GDPR) that has been shown to be so badly formulated and poorly understood that people are not able to make decisions with certainty as to what is permitted without an ad hoc intervention from the secretary of state.

In my recent paper for the IEA, Rules Britannia, I noted that regulations are often put in place based on quite dubious cost/benefit analysis, and then not reviewed to see if they actually achieved their objective. The way in which regulations have been relaxed as a matter of urgency by governments around the world, in some cases after they have caused serious barriers in battling the spread of the virus, has highlighted this in stark terms. This is also why calls to impose ‘emergency legislation to remove “morally unacceptable” conspiracy theories’ from social media platforms should be resisted. Misinformation at this is time is deeply damaging, but a perception that government is controlling the media to hide things from citizens could be even worse. Knee jerk responses that unnecessarily curtail freedoms run the risk of being counterproductive, and such measures have a history of being be retained long after their original purpose has been forgotten.

When this public health emergency is over, we will need all of the productive capacity and innovation that free markets can provide to ensure that the economy recovers and there are jobs for people to go back to. Wealth is the strongest predictor of health in a society and free economies grow the fastest. If dealing with Covid-19 allows us to identify regulations that are holding back productivity and innovation in healthcare and across the economy as a whole we must not waste the opportunity to re-examine whether they were in fact ever needed.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

COVID-19 gives us the opportunity for legal reform

Public life is now at a standstill in the United States.

Millions are social distancing and staying at home to avoid further community spread of the novel coronavirus known as COVID-19.

It’s important to remain positive, but times are tough. Nearly 18% of American households are facing reduced hours or layoffs at work, according to a new NPR/PBS NewsHour/Marist poll. Plugging into the 24-hour news cycle and its doomsday predictions doesn’t give many good vibes either.

That said, some government institutions remain on the clock. Legislatures in New Jersey, Wisconsin and dozens of other states still have open sessions to piece together legislation to alleviate their constituents; police officers and mail carriers are still on the job; and hospitals and clinics are working overtime to heal the sick.

All these institutions have had to pivot to the situation at hand and focus on how to react to the effect of the pandemic.

Police officers in cities such as Philadelphia and Lansing, Mich., have been instructed to not pursue low-level nonviolent crime to concentrate resources on the coronavirus. District and federal courts have been shuttered across the nation to do the same, leaving criminal, civil and immigration cases hanging in the balance.

With a huge pause button pressed, what will be the effect on our legal system?

While judges and lawyers have been sent home, there remain thousands of major lawsuits on the docket that could shape much of our lives once all this ends. And that’s important to remember.

Perhaps during this time, we can evaluate what we’d like our nation’s courts to prioritize once they return to normal.

That’s especially important because for every bogus lawsuit about Amazon “price gouging” toilet paper or hand sanitizer companies overstating their claims for killing germs, there are other major trials featuring outright hysteria and moral panic that deny scientific evidence and could lead to sweeping negative changes.

Currently, there are dozens of lawsuits related to the tenuous connection between nicotine pod vaping devices sold by companies such as Juul, and the outbreak of lung illnesses that took place last year. The Centers for Disease Control and Prevention came out in December and clarified the injuries were caused by vitamin E acetate found in illicit cartridges, but tort lawyers have not been dissuaded. They hope juries will buy emotional arguments over the science.

The same can be said for cases considering whether Johnson & Johnson baby powder contained talc products laced with asbestos, a carcinogen.

One trial in New Jersey is reviewing whether one testimony claiming such will be considered credible scientific evidence, known as the Daubert standard. Multiple scientific studies have yet to prove a link between talc in modern baby powder and any cancer, but previous cases have awarded as much as $4.7 billion to plaintiffs and their attorneys.

Will the judge listen to existing scientific evidence or hired court “experts” who stand to gain from huge payouts?

These are the types of perverse incentives that exist in today’s legal system.

Talk of reforming both criminal justice and tort law have been top of mind for many legal researchers and policy advocates for the past few years, and for good reason.

Much like the anti-scientific tort cases outlined above, too many people have had their lives ruined by nonviolent offenses that have stunted their careers and limited their successes. This legal abuse swarms our legal system and leaves legitimately injured consumers and citizens locked out of the courts.

Not everything deserves to rise to the level of our courts and our legal instruments if there isn’t legitimate harm to our people and communities. It’s the same principle as police officers in Philadelphia and Lansing being instructed to avoid low-level arrests of nonviolent offenders.

When life picks up again, and we deconstruct how our institutions fared in a time of crisis, we will need to ensure important reforms are implemented.

We need tools and reforms to avoid abuse of our nation’s courts by overzealous attorneys and prosecutors alike. That’s a noble goal we can all agree on.

Originally published here.


The Consumer Choice Center is the consumer advocacy group supporting lifestyle freedom, innovation, privacy, science, and consumer choice. The main policy areas we focus on are digital, mobility, lifestyle & consumer goods, and health & science.

The CCC represents consumers in over 100 countries across the globe. We closely monitor regulatory trends in Ottawa, Washington, Brussels, Geneva and other hotspots of regulation and inform and activate consumers to fight for #ConsumerChoice. Learn more at consumerchoicecenter.org

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