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Dukakis and Riegel

By James M. Beck and Mark Herrmann

Sometimes, two contrasting images make for a good title.

We figured we'd use two completely unrelated images: Dukakis and Riegel.

First, Dukakis:

Governor Michael Dukakis opposed the death penalty. In the 1988 Presidential debates, a reporter asked Dukakis whether he'd still oppose the death penalty if someone raped and murdered his wife. Dukakis thought for a while and then answered in a monotone.

Wrong answer!

The right answer is:

"Of course I'd oppose the death penalty in that situation! I'd personally pull the switch to fry that guy! In fact, forget electrocution -- I'd personally tear him limb from limb!

"That's exactly why we don't make public policy in America when we're outraged. We make policy by carefully considering the pros and cons of laws when we're not emotionally involved in the events. I'm a husband, and of course I'd want to strangle the guy who killed my wife. But, in the calm light of day, I know that the right policy for America is to forbid the government from killing its own citizens. That's why I oppose the death penalty."

Or something like that.

What does that have to do with Riegel?

Nothing; we just wanted to remind you about the 1988 Presidential debates.

Nah, we're kidding.

To our eye, having juries evaluate the safety and efficacy of a drug or medical device when they're sitting in the presence of an injured plaintiff is the same as asking Dukakis how he'd feel if someone hurt a loved one: Of course you want to punish the drug company that did this to that poor plaintiff -- the same way you'd want to retaliate against someone who hurt a family member.

But that's no way to make public policy.

We should make public policy calmly and rationally, at a time when we're not emotionally involved in the events.

That's exactly why the neutral experts at the FDA -- not juries sitting in the presence of an injured plaintiff -- should evaluate the safety of drugs and devices.

Full post as published by Drug and Device Law on March 17, 2008 (boomark / email).