Trial lawyers aren't to blame for the loss of Benedictin

The following is a small excerpt of my critique of Ted Frank's brief in the Wyeth preemption case.  Check out the whole critique when you have a few minutes.  I wanted to post this on its own because I'm tired of the numerous claims that trial lawyers keep safe drugs off the market.  I've already covered how pharmaceuticals file lawsuits to block generic versions of drugs from hitting the market.  But the reform movement doesn't want to seem to talk about that. 

"The "reform" movement always alleges that but for the tort system, a slew of new miracle drugs would save us all from the ravages of disease.  Yet the best example they can come up with is Benedictin, an anti-nausea drug taken off the market after a few bogus lawsuits.  So why isn't Benedictin back on the market in the U.S.?  Probably because Benedictin is made of two ingredients: Vitamin B-6 and doxylamine succlinate.  You know where to find Vitamin B-6.  But where to find doxylamine succlinate?  Buy some Unisom or Nyquil - it's the active ingredient in both.  25mg in the former and 6.25 mg in the latter, plus varying amounts in about a dozen knock-offs.  Now, why on Earth would a pharmaceutical spend the millions of dollars to bring Benedictin back to market when it (a) wouldn't receive patent protection and (b) can be exactly duplicated by taking a cheap vitamin pill and a Unisom?  

If fear of lawsuits were what was keeping Benedictin off the market, its active ingredient wouldn't be found in over a dozen cold & flu remedies.  Benedictin is hardly evidence that lawsuits are keeping medication off the market."