Litigation

SUPREME COURT DOES THE RIGHT THING

By Mark P. Loftus, Esq.

On Wednesday, the United States Supreme Court upheld a multi-million dollar Vermont verdict, and in doing so preserved an important right for consumers - the right to sue drug manufacturers for injuries caused by defective drugs. The case that started it all began in Vermont in the year 2000, when Diana Levine[shown below] went to a clinic near her home complaining of a severe headache. She was given Demerol and an injection of Phenergan. The drug is usually given orally or through an IV drip. What Ms. Levine did not know was that there could be devastating side effects if the drug reached an artery. The maker of the drug, Wyeth, was however, fully aware of that fact. At least 20 other person had lost limbs as a result of the being given the drug prior to Levine.

Shortly after being given the injection[which apparently reached an artery]gangrene developed and Ms. Levine lost her right hand. Then she lost part of her right arm. She sued and settled against the clinic. She then brought suit against Wyeth for failing to warn consumers of the dangers presented by the drug. A Vermont jury agreed, and awarded her $6.7 million dollars.

Wyeth appealed, arguing that it had disclosed the risks to the Food and Drug Administration[FDA]which went ahead and approved the warning label. Wyeth argued that the FDA approval preempted the right of Ms. Levine to sue. Wyeth's preemption argument was made possible by the recently departed Bush administration. Three years ago Bush and his co-horts reversed a long-standing FDA policy by announcing that FDA approval of a drug barred any suit against the manufacturer.

The Supreme Court however, shot the Bush preemption doctrine down. The opinion noted that Congress had regulated drugs for many years and had never barred consumers from suing drug manufacturers. In addition, the Court also noted that lawsuits like those filed by Ms. Levine exposed dangerous drugs - thereby making the market safer.

Every consumer should thank Ms. Levine for staying the course these nine long years. If the case had gone the other way, tens of thousands of consumers pursuing cases in the courts for injuries suffered because of defective drugs would have been out of luck.

Full post as published by Illinois Lawyer Blog on March 05, 2009 (boomark / email).