Sharks a-circling: trial lawyers are hungry for yet more billions; a vilified Bush-adminstration lawyer stands in their way

QUESTION: What's the most dangerous place on earth? Answer: Between the trial lawyers and their next billion dollars.

Right now, the man occupying that deadly patch of ground is Daniel Troy, chief counsel to the Food and Drug Administration. In recent weeks, Troy has come under screaming attack in the New York Times and the Denver Post, and on The CBS Evening News. Democrats in the House of Representatives voted (with the Republicans intimidated, or asleep) to slash $500,000 from Troy's office's budget. The front page of the Boston Globe cited him as an example of everything that's wrong with the Bush administration.

Until now, Troy was just one more smart lawyer in a town full of smart lawyers. Suddenly he has found himself the next Robert Bork.

To understand how Troy got into this predicament, you have to begin by mastering one of the basic rules of Washington: When people want to grab really big money, the first thing they do is emit a lot of complicated jargon. They make their issue seem crushingly boring--and then, while the public is yawning and its eyes are glazing over, whoosh: A huge sum of money is suddenly on its way to new owners. The trial lawyers are employing this familiar trick at this very moment. They are presenting their latest scheme as a technical issue of federalism, when it is a gold rush, plain and simple.

Successful lawyers have always made a good living in the United States. But over the past three decades, a series of changes in the way law is practiced has made it possible for a small number of lawyers to become fabulously wealthy by suing big companies in front of local juries. These lawyers began as personal injury lawyers. In the asbestos litigation of the 1980s, some of them became multimillionaires. In the tobacco litigation of the 1990s, others became centimillionaires. Now, in the 21st century, some of them are aspiring to break new records: to create a class of litigator-billionaires, if they can just find a target big and juicy enough.

And there's only one such target left: the health-care industry, one-seventh of the U.S. economy.

The trouble for these lawyers is that health care has long been an industry closely regulated by Congress. Congress set national rules for health insurance back in 1974; it began regulating food and drugs as long ago as 1906. And once Congress tells an industry what to do, the states and state courts cannot issue contradictory orders. Lawyers call this principle "preemption," and it is an approach dictated both by the Constitution and by common sense. It is a principle that Democrats and liberals, the champions of federal regulation, should logically strongly favor. But in recent years, liberals and Democrats have acquired, if not new principles, then new constituencies.

In the 1990s, liberals and Democrats began clamoring for a "patients' bill of rights" that would open the health-insurance industry to lawsuits. They lost the fight. That rare defeat made the litigation industry even hungrier for the money to be extracted from pharmaceutical companies--and has led the industry, and its allies in Congress, to demonize the companies that manufacture the lifesaving miracles of the modern world.

While in private practice, Daniel Troy had become increasingly concerned about the medical harm done by these abusive lawsuits. For example, many smokers find it difficult or impossible to stop, even during pregnancy. Nicotine-replacement drugs could help protect the children of such women against the hazards of tobacco. Nicotine replacement is not risk-free, but it is much less risky than smoking. Yet fear of lawsuits has discouraged doctors from recommending nicotine replacement to pregnant women, thereby exposing many thousands of babies to preventable birth defects.

Another example: Depression is one of the most pervasive and debilitating of mental illnesses. Modern antidepressants like Prozac and Zoloft can save lives and careers. They don't work for everybody, though, and some depressives on those drugs have killed themselves. Indeed, the FDA itself warns that one side effect of antidepressants is that, by enhancing depressives' ability to function, they may slightly raise the risk of suicide in the very early weeks of treatment. Doctors who prescribe antidepressants should know to monitor their patients especially closely when starting them on the drugs.

But a strange coalition of holistic-medicine types and Naderite lawyers wants to argue that Prozac and Zoloft actually cause more misery than they cure. If these forces were ever to succeed, they would do more than merely enrich themselves. They could drive those antidepressants off the market altogether, causing enormous suffering to many millions of people now leading active, productive lives.

So as FDA chief counsel, Troy began to file "friend of the court" briefs in drug litigation. His argument went as follows: No drug or medical device can be prescribed in the United States until the FDA has decided that the drug or device is both safe and effective. FDA approval is not easily won. The testing necessary to convince the FDA can take up to a decade--and cost hundreds of millions of dollars. When approval is secured, the FDA then tells the manufacturer precisely how the drug or device may be used, and what the label for that drug or device must say.