Personal Injury Law

Commentary from Nan Aron: Wyeth v. Levine = Private Wealth Over Social Justice

By Nan Aron

(image from Wikimedia commons)

Three decades ago, as Diana Levine's career as a children's music producer and performer was just starting to take off, ultraconservatives had their sights set on a different kind of breakthrough. On Nov. 3, these two divergent paths will cross before the U.S. Supreme Court and the rights of millions of Americans will hang in the balance.

In 2000, Diana Levine visited a Vermont clinic to receive treatment for a severe migraine. During that visit, she was given the Wyeth Pharmaceutical drug Phenergan through an IV push, a method used to inject medications directly into the body.

Even though Wyeth knew for years that administering Phenergan in this way could result in the drug coming into contact with an artery and ultimately lead to irreversible gangrene, the company never warned doctors of this risk. Weeks after she received her dosage of Phenergan, Diana lost her arm and her livelihood. A Vermont jury and the Vermont Supreme Court both agreed that Diana should receive compensation from Wyeth because the company failed to warn medical professionals of this risk.

On Monday, Wyeth will ask the Supreme Court to overturn these verdicts and give the drug company complete immunity in cases based on FDA-approved drug labels. Wyeth argues that since the FDA approved its Phenergan label, the company cannot change it or warn doctors of new risks after they are identified. It argues the FDA's approval of a label established a ceiling of protection from harmful drugs, not a floor.

Therefore people who are injured by those drugs have no recourse after the FDA approves the product. To make this case, Wyeth is advancing a radical new interpretation of an age-old legal doctrine called "preemption" that has historically been used to vindicate the supremacy of the federal government.

Though it is impossible to know how the Supreme Court will rule in this case, a closer look at the past 30 years and a significant pro-business shift on this federal bench has court-watchers on edge. During the Reagan administration, ultraconservatives launched a relatively quiet but significant effort to reshape the American legal system by capitalizing on a growing public wariness of lawyers and litigants. A coalition of ultraconservative business groups and likeminded foundations engaged in a comprehensive campaign to elevate corporate profits and private wealth over social justice and individual rights as the cornerstone of our legal process. The fruits of their labor have now come to pass.

Of the 30 business cases heard last term before the Supreme Court, 22 were decided unanimously in favor of big business, or with just one or two dissenting votes, and against the interests of everyday Americans. For example, earlier this year in Riegel v. Medtronic, the Court ruled in favor of the preemption theory as applied to manufacturers who produce faulty medical devices, a decision that leaves those affected by these products without recourse.

The Levine case has broad implications and it's one that we should all follow closely. The sheer number affected by such a ruling would be monumental; every single person who has taken a prescription drug - literally millions of Americans - will lose their ability to seek redress against companies making dangerous products. Just as troubling is the fact that if the Court rules in Wyeth's favor, it will further solidify an ideological shift among the justices towards favoring corporate interests at the expense of us all. This would be unacceptable.

Today marks the beginning of a partnership Alliance for Justice and InjuryBoard.com have established to give you the latest information about the Levine case and about the fight to restore balance to our Supreme Court. Throughout the coming weeks, we will give an insider's view of the oral argument in this case and post our new documentary, Access Denied?: The Fight for Corporate Accountability, on InjuryBoard.com.

For now, however, we invite you to join us in our campaign to protect consumers and hold corporations accountable for their actions. To learn more about this work and ways you can help, please visit www.afj.org/accessdenied.

This guest blog editorial was submitted to InjuryBoard by Nan Aron, President of the Alliance for Justice, a national association of environmental, civil rights, mental health, women's, childrens, and consumer advocacy organizations. Since its inception in 1979, AFJ has worked to advance the cause of justice for all Americans, strengthen the public interest community's ability to influence public policy, and foster the next generation of advocates.

Full post as published by InjuryBoard on October 30, 2008 (boomark / email).