Just playing devil's advocate...what if the Supremes allowed litigation in these cases? What incentive would anyone have then for going through all the R/D and FDA approval process if it meant all they could do was sell the product? No one would risk developing anything new because they would just be another target for a lawsuit (and a class-action one, at that...) Keep in mind our ridiculously litigious society...

Besides, and this is big, there would be no need for the FDA at all if there "stamp of approval" meant nothing! You would have these scenarious:

1. FDA approval means nothing: company expends tremendous capital researching and developing new drug...spends additional millions getting FDA approval...begins selling new drug and gets hit with lawsuits....goes bankrupt, or at a minimum, it severely curtails new developments....other companies watching from the sidelines are discouraged from developing new drugs....not good for anyone ill with anything...

2. FDA approval means protection: company expends tremendous capital researching and developing new drug...spends additional millions getting FDA approval...begins selling new drug and gets hit with lawsuits....uses FDA approval as a defense and wins, does not go bankrupt...other companies watching from the sidelines are NOT discouraged from developing new drugs....this could be good for those ill with anything....


Don't get me wrong, I think there is a middle ground here. There should be some exceptions/carve outs to the immunity, but given our litigious society, which is already stifiling R/D and incredibly expensive to boot, they would need to be narrowly drawn.

A side point: if we had a loser-pay system, like Germany does, this issue might not ever come up. But then, if we had a loser-pay system, that would make it much harder on lawyers filing such claims, and we can't have that, can we?