The unraveling of the Heparin conspiracy got a little clearer yesterday when the FDA announced that it is suspecting business fraud as the primary culprit behind the contamination of Baxter’s Heparin. Click here to see the story. The FDA’s theory is that somewhere in the China supply chain for the Heparin, some person or entity thought they could make a higher profit margin if they substituted counterfeit Heparin raw material, for the real thing. Woops if the substitute just happens to be toxic.
Assume the FDA is right. Should American drug companies be able to shift blame by finger-pointing at Chinese suppliers? Not in our book. A drug such as Heparin and its raw materials are ultra-hazardous substances, especially because they are to ultimately put right into the bloodstream of humans. And not just any humans, in the case of Heparin, very ill and vulnerable individuals. Who needs a toxin or hypotension (with resulting hypoxia) less than a kidney patient? See yesterday’s bog for a discussion of hypoxia.
Questions that must be answered:
- Why Chinese Pork?
- Is it just because they are more vulnerable that the kidney patients had the first reactions to contaminated Heparin that couldn’t be dismissed as something else?
We don’t yet know the specifics of the either the bean-counting that made the choice to go Chinese versus American on the pork. We may never know how that calculated profit was enhanced by a sophisticated counterfeiting process. What we can clearly presume, however, is that if Baxter had wanted to make sure that Heparin was pure, it could have used American pigs to produce it. The United States is the largest single exporter of pork in the world, trailing only the combined European Union for pork exports. While the Chinese produce more pork total than the U.S. its billion plus population consumes a much higher percentage than in other countries and they are actually fifth in exports.
So we know that since we are exporting pork from the U.S., Baxter could have bought it here. If they went overseas to get it, it must have been because pork bi-products had a lower value to them than to all than all those other American companies who make things from pork, such as pizza, bacon and countless bi-products.
Well, the safety and purity of things I put in my mouth is important to me. But a lot less so than the safety of what I put in my bloodstream. My mouth and stomach are made to filter out the contaminants, before the contaminants get into my blood stream. How could Baxter have valued the purity of their products less than those who make frozen pizza’s?
At some point we will learn that Baxter, by using Chinese pork, by some sort of bizarre bean-counter logic, saved up to 1 cent or maybe 5 cents a dose. But Baxter sold a lot of Heparin so the ultimate calculus was perhaps millions. Greed. For that incremental saving, we lost what will likely add up to hundreds of lives. We haven’t even remotely assessed the extent of permanently damaged human organs.
There exists a remedy in American jurisprudence for bean-counting gone haywire: it is called punitive damages. Usually it is reserved for the calculation to not fix a known defect. That application of punitive damages will likely apply here. But in this case we have more: we have homicide. Counterfeiting Heparin is murder by poison. Clear and simple. Only punishment, and severe punishment, can once again tell the corporate world that crime doesn’t pay.
Attorney Gordon Johnson
Chair Traumatic Brain Injury Litigation Group, American Association of Justice
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