Consumer Law

This Bextra lawsuit shows the injustice in preempting lawsuits against pharmaceuticals

By Justinian Lane

As regular Tortdeform readers know, the U.S. Supreme Court is set to decide the case of Wyeth v. Levine, a case involving a woman whose arm had to be amputated because of an anti-nausea drug.  Diana Levine?s lawsuit is called a failure-to-warn lawsuit; she argues that Wyeth should have included a stronger warning that administering the drug a certain way can cause gangrene.  Wyeth?s position is that since the FDA approved the warning label, Wyeth shouldn?t be liable for not putting more information on the label.  (When I say label, I mean the pamphlet that accompanies prescription drugs and is read mostly by doctors.)  If Wyeth gets its way, the Supreme Court will rule that the failure-to-warn lawsuits over drugs approved by the FDA are preempted by federal law.  In other words, no one will be able to file failure-to-warn lawsuits ? even if the pharmaceutical knowingly conceals information from the public or the FDA.  If preemption becomes the law of the land, the victims of the next Vioxx won?t have their day in court.

This Bextra lawsuit again reminded me of the injustice of preempting failure-to-warn lawsuits:

Dec. 23 (Bloomberg) -- Pfizer Inc., the world?s biggest drugmaker, must pay a research center $38.7 million for stealing data compiled by the foundation on its Bextra pain-killer drug, a California jury determined.

State court jurors in San Jose yesterday found that Pfizer stole the information from the Ischemia Research and Education Foundation, which for more than 20 years has collected data on post-surgery medications, reactions, and placebo effects, said Pat Harris, an IREF lawyer. Pfizer said its conduct was ?proper? and it will appeal the verdict. 

Source: Bloomberg.com: News

Does it seem right that if a pharmaceutical knowingly, purposely, and intentionally hides deadly side effects of a drug from the public, that pharmaceutical wouldn?t even have to pay the medical bills of those injured by the drug? but if that same pharmaceutical steals safety data about their own drug they can be liable for tens of millions of dollars?  Can we really call it a justice system if it won?t punish a pharmaceutical for killing people but will punish it for stealing information?

Full post as published by TortDeform.com on December 24, 2008 (boomark / email).