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. . . LITIGATION MAKES FIRMS SHUN NEEDED RESEARCH FOR WOMEN

LAST YEAR $600 million was spent on cosmetics research. By comparison, about $30 million was devoted to contraceptives research. Do women really care more about eye makeup than about safe, reliable and convenient forms of birth control?

Is the market responding to women's demands when entire stores are stocked with cosmetics, but the contraceptive sponge can't be found on pharmacy shelves? Of course not.But the costs and risks of litigation in the United States make cosmetics a safer investment than contraceptives, or a morning-sickness pill, or many other drugs and medical devices.

A solution to this problem is pending before Congress - it already has passed the House and will be considered by the Senate in April.

The legislation would preclude punitive damage awards in cases involving products that were given premarket approval by the Food and Drug Administration. Making this sensible change will remove a major barrier to the development of new drugs and medical devices.

Of course, the regular cast of special interest groups oppose this legislation. Women, they remind us, suffered harm from the Dalkon Shield, DES and toxic shock syndrome from super-absorbent tampons. Women, they point out, consume more health services and are more often plaintiffs in medical malpractice cases. This legislation, they say, will hurt women's interests.

Nonsense. The people who invest in research development of new drugs and medical devices need to know that, if the FDA says their product is safe to go on the market, they will be protected from punitive damages liability.

Otherwise, inconsistencies in the law from state to state, and from jury to jury, will continue to make it impossible for them to forecast costs or assess liability risks. This is especially true for products related to women's health.

A 1994 report by the National Research Council and the Institute of Medicine concluded that the "unpredictable" and "erratic" nature of the U.S. litigation system has drastically limited research and development in the areas of contraception and fertility.

The truth is that plaintiffs' lawyers and their friends oppose civil justice reforms of any kind and especially those affecting women's health products. The notorious cases they cite either didn't involve FDA-approved products or didn't involve punitive damages.

Indeed, in some instances, there was no scientifically proven relationship between the product and the harm, but the manufacturer removed the product from the market for economic reasons.

The proposed FDA-approval defense would not limit compensatory damages, whether for medical expenses, lost wages, legal fees or pain and suffering. It would only be a defense against punitive damages.

Punitive damages are rarely imposed, but defending against the possibility of a punitive damage award substantially raises the costs of litigation.

We know what the interests of the trial lawyers and their captive "consumer" groups are. Despite what they say, women's interests are entirely different.