Wampum

In yesterday's post on S. 3, the Protecting America Big Pharma in the War on Terror Corporate Malfeasance Act of 2005, I noted that one of the provisions will indemnify drug manufacturers if their product was previously approved for use by the Food and Drug Administration. This, it appears, would provide blanket liability protection for a class of drugs currently under fire, inluding Vioxx and Celebrex.

I must sheepishly admit that I repeated this claim without closely reading the text in question. This morning, after reading an article in the New York Times discussed below, I did so. The protected drugs in question specifically fall under the heading epidemic and pandemic "countermeasures". (Note: You no longer take your child to the doctor to be vaccinated, but "countermeasured.")

It appears that the reason for the destinction is due to the fact that a whole raft of other bills are working their way through the House and Senate which would offer the same protection to all drugs approved by the FDA. The problem is, since more people would be effected by such changes, the fate of such legislation is less certain. Better to attach the vaccine protections to a popular bill, since the number of kids injured by such "countermeasures" is relatively limted (tens of thousands, not millions.)

So what prompted my review of S. 3? Well, according to the New York Times this morning, Merck is considering reintroducing its now tarnished painkiller, Vioxx, arguing that if other drugs in its class, namely Celebrex and Bextra, are allowed to remain on the market, albeit with warnings, they should be allowed to as well.

Now seriously, are we to believe that Merck, with potentially trillions in liability claims now pending due to injuries caused by Vioxx, would risk even more deaths and lawsuits without some kind of ace-in-the-hole? A simple calculator answers that question fairly quickly.

$25,000,000,000 in annual Vioxx sales ÷ $250,000 maximum non-economic damages = 10,000 injuries and deaths

Thus, as long as Merck manages to keep the number of Vioxx deaths below 10K a year, the drug remains profitable. Well, maybe a few less, taking into account the costs of marketing the drug to consumers.

However, should the blanket drug liability protections fail, Merck, and Vioxx may yet be covered under S.3, as Dr. Christopher Grubb, a captain in the Army Medical Corps, argued to a federal drug advisory panel on Wednesday that the drugs "are essential for our global war on terrorism."

Maybe S.3 should be named the Protecting Drugmakers in the War on Terror Act of 2005.