Willful Misconduct: How Bill Frist and the Drug Lobby Covertly Bagged a Liability Shield

Drug industry lobbyists conspired with the White House and Senate Majority Leader Bill Frist (R-Tenn.) last year to craft a sweeping liability provision that shields the industry from lawsuits over products used to treat pandemic illnesses, even in cases of gross negligence or gross recklessness.

This report relies on internal documents and e-mails of the Biotechnology Industry Organization (BIO) to illustrate the degree to which Frist's office deferred to drug industry demands and describes Frist's sleight of hand in securing passage of the provision. It underscores the enormous power of the drug industry and its lobbyists to steer a highly controversial provision into law.

Frist inserted the shield provision into an already-completed conference report for the defense appropriations bill in the dead of night, with the aid of House Majority Leader Dennis Hastert (R-Ill.). Many of the members of the conference committee had never seen the language, let alone approved it. Committee leaders explicitly assured Democrats, made wary by rumors circulating in the preceding days, that no attempt would be made to insert the liability measure into the spending bill.

The shield is unnecessary because the government now can -- and does -- indemnify drug companies in contracts, using provisions saying that the government will cover costs in excess of the companies' insurance.

The pharmaceutical industry used legions of influence-peddlers to push for the measure. The industry deployed at least 158 lobbyists to influence policies relating to vaccines and pandemic preparedness in 2004 and 2005, including 84 who were previously employed by the federal government. Of those, seven were former members of Congress, two were former top health care aides to Frist and another was the son of the speaker of the House.