A balance of power between Democrats and Republicans might be seen as desirable by at least some voters, but that idea does not always extend to the composition of panels that are called to address congressional committees. A lack of balance in one panel of witnesses served as a temporary flashpoint at yesterday's hearing in the Oversight and Government Reform Committee.

All the members of the first panel at yesterday's hearing spoke against pre-emption, and the first four of the five witnesses on the second panel held the same view, a fact that was not lost on Rep. Mark Souder (R-Indiana). Souder made clear that he felt the arrangement was a deliberate attempt to skew the hearing.

"We can't have a [fair] debate" because of the composition of the first two panels, Souder said, adding "I've been on both sides of this as a staffer and as a member." He acknowledged that it sometimes happened when the GOP held the majority, but he said of supporters of pre-emption among the witnesses, "when you bury them deeper in the hearing," their views are not heard.

Waxman did not refute the charge, but said at one point, "when you get the majority, you can design the hearings as you see fit." Souder replied that when the GOP last had the majority, "we had more balance." Waxman did not reply.

Souder went on to make his case against the reversal of pre-emption, citing costs as the major bane of healthcare in the U.S. "We have never seen cost containment come from lawsuits," he said, adding that along with research into genomics is research into the concomitant legal liability. "The greater you set the lawsuit risk ... the greater the insurance cost," he said, raising the specter that too high a legal risk will blunt interest in commercialization.

"It is silly to suggest that lawsuits in 50 states" will not blunt innovation, Souder said, asserting that "willful neglect is not immunized" by pre-emption, a point that former FDA chief David Kessler, MD, confirmed in his panel presentation.

— Mark McCarty