This week the American Bar Association is holding its annual meeting in Chicago. Thanks to NJCJI and other pro-defense attorneys and organizations the ABA will not be voting on a controversial resolution that would have put the ABA on record as “oppos[ing] legislation that limits and/or bans punitive damages for claims of patient harm allegedly caused by manufacturers of FDA-approved medical products or devices.”
The resolution was withdrawn after opposition to it was expressed. In our letter to ABA President William C. Hubbard regarding the resolution we noted:
Limiting punitive damages in cases where the defendant has complied with government regulations is good public policy. It reinforces the FDA’s authority and responsibility for drug and device approvals, and ensures that companies have every incentive to be 100% compliant with the FDA’s edicts. Allowing companies to be punished, which is what punitive damages are designed to do, for complying with Federal law cheapens the value of adhering to the rule of law.
Punitive damages also impose great costs on defendants. In the context of FDA-regulated companies, these costs would be imposed on top of compliance costs. It is foolish to think that consideration of these costs would not impede the development of new drugs and devices, or inspire a company to take beneficial products off the market.
In addition, if passed, resolution 105 would put the ABA in opposition to existing New Jersey law as well as the Federal proposals it purports to target. N.J. Stat. Ann. § 2A:58C-5c, which has been on the books since 1987, limits punitive damages in New Jersey-based products liability actions involving FDA-approved products and devices. None of the negative outcomes of such a policy that are predicted in the current report on resolution 105 have, as of yet, befallen New Jersey, “the nation’s medicine chest.” This suggests that there must be some other goal in mind of the supporters of the resolution.
We are thankful that the ABA took action to stop this resolution from coming up for a vote.
We encourage all of our members and supporters to get involved with the ABA and other legal policy organizations because as the old saying goes, “If you aren’t at the table, you’re on the menu.”