Diana Levine’s case is going to be reviewed by the Supreme Court
The U.S. Supreme Court is going to make a further decision on preemption in products liability cases. See our prior post on the last term’s Supreme Court case on preemption.
The U.S. Supreme Court’s decision may determine whether injured people can bring products liability cases in the future. This will be a very important case, and it will be the Court’s most important tort case of this term.
Federal preemption is the current battleground in products liability cases. In essence, the doctrine of federal preemption allows the federal government to “preempt” the states in certain areas of products law so that an injured person is barred from suing in the state courts on the basis that the product has met federal standards. For example, drug makers seek to invoke “federal preemption” to bar state court products liability lawsuits. Drug manufacturers claim that the federal government had determined drug safety through the Federal Drug Administration. Therefore, the F.D.A.’s exhaustive rulings on a drug’s warning preempt state law on failure to warn.
The practical effect of federal preemption is that injured plaintiffs may not brings products liability cases. In sum, federal preemption would gut state products liability law. Injured plaintiffs would have no recourse in the courts for their injuries.
In the case before the Supreme Court, Diana Levine, a musician, lost part of her arm due to the administration of a drug called Phenergran. In 2000 Ms. Levine was suffering from a migraine, and she visited a clinic for a treatment that she received many times: Demerol for the pain and Wyeth’s Phenergran for nausea.
There was nothing wrong with either drug. It is an issue as to how they are administered.
If Phenergran is exposed to arterial blood it causes swift and irreversible gangrene. For that reason it is typically administered by intramuscular injection. It is also safe by intravenous drip. However, in Ms. Levine’s case a physician’s assistant used a third method. She injected the drug into what she thought was a vein, a method called “IV push.” Apparently, the assistant missed.
Unfortunately, Ms. Levine’s hand and forearm turned purple and then black. She had gangrene, and she had amputation in two stages.
In essence, Ms. Levine claimed that the drug manufacturer did not provide adequate warnings against using the “IV push” and that Wyeth should have warned against it. The dangers of using the “IV push” outweighed its advantages.
Ms. Levine sued both the clinic and Wyeth. She settled with the clinic and went to trial against Wyeth. She won a $6 million verdict. Her verdict was upheld by the Vermont Supreme Court. Now, it will be reviewed by the U.S. Supreme Court.
Wyeth claims that its warnings were approved by the F.D.A. and that the federal approval preempts any attempt by a state court jury ruling on the propriety of the warnings.
Our fingers are crossed that the U.S. Supreme Court will uphold the Vermont Supreme Court. We will keep you advised. If the Supreme Court says that preemption is applicable, then this may spell the end of drug products liability cases as well as other kinds of products liability cases.
If you have a question about a dangerous drug or other product, please feel free to call us at 800-244-1313.
Mark E. Seitelman, 9/21/08, www.seitelman.com.