His soft Mississippi drawl almost masks his angry tone.
But it's clear oilman Gary Murphree has a bone to pick with the Bush
What has him so riled up?
Justice Department and Food and Drug Administration recently filed
court papers to block Murphree's lawsuit against Pacesetter Inc., a
company that made two pacemakers he says damaged his
The Murphree v. Pacesetter case is just one of several
in which the Justice Department has intervened recently on behalf of
the FDA, seeking to prevent lawsuits against medical device and drug
Some legal experts say the government is using a
back-door approach to achieve tort reform - a move to reduce huge
payments to plaintiffs in liability cases.
Murphree, 46, says
the two pacemakers he received - both recalled - left him with
serious heart rhythm problems. He says he suffered third-degree
heart block - failure of the heart's electrical signals which can
lead to cardiac arrest.
"I had emergency surgery," Murphree
said in an interview from his Jackson, Miss., Dutch Lubricants
office, where he is a partner in an oil marketing business. "For a
year I couldn't pick up my daughter." He eventually received a third
pacemaker from a different company.
Since 2001, the FDA,
represented by the Justice Department, has been trying to block
liability lawsuits, usually by filing friend-of-the-court briefs or
other legal documents.
A range of products
cases have all involved FDA-approved products - with plaintiffs
alleging either injuries or death. Products range from a heart pump
to an antidepressant to a nicotine patch.
In one case, Motus
v. Pfizer, a woman alleged that her husband killed himself after
taking the company's antidepressant Zoloft. The government said she
could not challenge Zoloft's safety because the FDA had approved it.
The court dismissed the case, though not on the government's
Government lawyers have not wavered in their
argument: Once the FDA approves the product, they say, allowing
injured consumers to sue manufacturers would sabotage the agency's
But this position is a tactic adopted by the Bush
administration to accomplish tort reform, some legal experts
A tort is a legal term meaning a "wrong" - causing
injury to people or property. Tort reform refers to efforts to
reduce large - some say excessive - payments by insurance companies
in liability cases. The Bush administration has advocated tort
reform but not received needed support from Congress.
result of the government's intervention in his pacemaker lawsuit,
Murphree, a Republican contributor, says he will vote for John Kerry
in November or sit out the election.
A Justice Department
"statement of interest" filed in connection with Murphree's suit
states: "Relying on its scientific expertise, FDA determines the
proper regulatory pathway for medical devices. If juries were to
make this determination in the first instance, rather than the FDA,
it would result in an unworkable, chaotic system that Congress
sought to avoid by charging FDA with the responsibility for
regulating medical devices."
Justice Department spokesman
Charles Miller said he could not comment on Murphree's case or the
department's shift toward preventing lawsuits for injuries stemming
from FDA-approved products.
'Dramatic change of
Jim O'Reilly, a visiting law professor at the
University of Cincinnati and an expert in food and drug law,
disputes the government's position. "It is a dramatic change of
policy for the current Bush administration to take the pre-emption
issue as a weapon against private plaintiffs," said O'Reilly, who
filed a friend-of-the-court brief in the Murphree case.
FDA position on product liability differs from the Clinton era
viewpoint that states could provide consumer protection to
supplement FDA safety standards. In the past, the FDA intervened in
liability cases - but typically not without being asked to do so by
a court or other government entity, O'Reilly said.
Margaret Jane Porter, Clinton administration's chief FDA counsel,
wrote: "FDA product approval and state tort liability usually
operate independently, each providing a significant, yet distinct,
layer of consumer protection."
FDA officials did not respond
to interview requests. However, acting FDA Commissioner Lester
Crawford said in a prepared statement: "When state courts call into
question the FDA's global gold-standard determinations, FDA has an
obligation to act."
In July, a Pennsylvania federal appeals
court threw out a lawsuit brought by a Pennsylvania woman who
alleged her husband died because of a defective heart pump. The
Justice Department had intervened, arguing the FDA had approved the
pump and its authority could not be challenged.
Zieve, an attorney with Public Citizen, a Washington watchdog group,
represented the widow, and said the administration's interest in
liability cases "certainly seems like tort reform by the back
"The main issue for us is the FDA is taking a position
that is bad for consumers, bad for patients and bad for public
health," Zieve said.
The administration's interventions have
all occurred since Daniel Troy, an attorney who previously
represented drug companies, became the FDA's chief counsel in
In July, five former FDA counsels - excluding Porter -
wrote to Congress defending Troy, who had been attacked by Rep.
Maurice Hinchey (D-Saugerties) for cracking down on liability suits
involving FDA-approved products.
Peter Hutt, FDA counsel
during the Nixon administration and now a practicing attorney, said
he didn't ask Porter to sign the letter because she now works for
the government. Porter could not be reached.
persuaded the House of Representatives to transfer $500,000 from
Troy's budget to another FDA office. It's unclear if the Senate will
back that move.
The five former FDA counsels urged a
restoration of funding, saying: "... Mr. Troy is establishing a
sound policy of national decisions that promote the public health
and, thus, the public interest."
Hinchey, a member of the
House Subcommittee on Agriculture, Rural Development, Food and Drug
Administration and Related Agencies, disagrees. He said Troy's
previous work on behalf of drug companies conflicts with his current
actions. Troy did not return calls for comment.
saying under federal law, when the feds give approval to a drug,
that means the manufacturer can sell it - and if people use it and
get harmed by it, there is no state tort remedy," said Susan Low
Bloch, a constitutional law professor at Georgetown Law Center.
In Mississippi, Gary Murphree just celebrated his son's
wedding and is waiting to see whether his lawsuit moves forward.
"I'm for tort reform," he said. "I'm just not for taking everybody's