Daniel Troy's Poison Pill by Stephanie Mencimer / Mother Jones

[Demeter]

http://www.motherjones.com/washington_dispatch/2008/03/daniel-troy-fda-preemption.html


How a former Bush appointee has the high court poised to wipe out consumer suits over dangerous medical products—and possibly much more."

When it comes to notorious Bush political appointees, Daniel Troy's name doesn't usually make the top-10 list, overshadowed as he is by more high profile cronies such as FEMA's Michael Brown. But for three years in the president's first term, Troy served as the chief counsel to the Food and Drug Administration (FDA), where he quietly advanced a legal revolution that is playing out in earnest in the U.S. Supreme Court this year. This revolution has the potential to affect the health and safety of the nation's citizens for years to come, all while making Troy a rich man. In fact, his career is an illustration of how the Bush administration's revolving door has allowed industry lawyers to radically reshape regulatory agencies to benefit the big businesses they once represented and then profit from those changes when they return to the private sector.

Back in 2001, when the president tapped Troy for the FDA, Bush made history for turning the general counsel's job into a political appointment, when most of the previous occupants of the position had been civil servants. The appointment was a sign that the president intended to impose a political agenda on the agency. A former clerk to Robert Bork, Troy was a die-hard conservative who had spent most of his career suing the FDA on behalf of drug and tobacco companies over regulations those industries didn't care for. Before going to the FDA, he had worked at the D.C. powerhouse law firm of Wiley, Rein & Fielding, where he represented a number of pharmaceutical companies, including Pfizer, which paid the firm more than $350,000 for Troy's services the year he was appointed to the FDA. A year after the ban on working on matters involving former clients had passed, Troy quickly got to work helping out the drug companies who used to pay his fees.

Under Troy's leadership, the FDA started showing up in state courts, offering briefs in civil cases on the side of drug companies being sued by people who'd been injured by dangerous prescription drugs and other medical devices. In an unprecedented move, agency lawyers argued that because those products had been approved by the FDA, such lawsuits were "preempted" by federal law and should be dismissed.

Troy's FDA was promoting the idea that tort lawsuits in state court interfere with federal regulatory authority by letting judges and juries second-guess decisions over drug labeling and approval made by the experts in federal agencies. The drug companies were arguing, with the agency's help, that FDA approval for a product should be the gold standard and that if companies meet that standard, they shouldn't be subjected to the rules of 50 different states trying to impose their own health and safety standards through lawsuits...The Bush administration has embraced preemption largely because it allows the White House to use its regulatory power to achieve what big businesses haven't been able to do through legislation, which is immunize themselves from lawsuits over defective products. In recent years, federal agencies, dominated by industry insiders, have written preemption language into safety regulations, from rules issued by the Consumer Products Safety Commission governing mattress flammability to those introduced by the National Highway Traffic Safety Administration on seat-belt placement and automobile-roof strength. In fact, while the NHTSA was run by a former lawyer for DaimlerChrysler, it issued a roof-strength regulation that was so weak the only possible explanation for its issuance was that it was designed to help auto manufacturers head off lawsuits. Even the EPA has gotten into the act, once filing a brief on behalf of Dow chemical supporting its preemption defense in a case before the Supreme Court in 2005.

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Stephanie Mencimer is a reporter in Mother Jones' Washington, D.C., bureau and the author of Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue (Free Press, 2006).