Injury Lawsuit Pre-emption
The last in this series of blogs on federal agency efforts to protect product makers from recklessly hurting consumers, we look at a current case to be decided by the U.S. Supreme Court. Indeed, this case is worthy of all Americans who do not put their absolute faith in the judgment of corporations and federal agencies to protecting public health and safety.
This particular case, Wyeth vs. Levine, involves a professional pianist, Diana Levine, who lost her right arm eight years ago after the prescription drug Phenergan was administered through her vein for a migraine headache. Her lawsuit alleges the manufacturer, Wyeth, was aware that an arterial reaction was a risk in the intravenous technique that was used - but failed to mention it on the drug's warning label.
Levine won a substantial judgment in state court. However, the legal issue before the U.S. Supreme is: Whether the existence of federal regulation pre-empt states from either enacting stricter rules for public health and safety - or even allowing victims to file lawsuits in state courts?
The high court signaled its inclination to side with the federal regulators over the states - and big business over individual rights - with its February ruling against a New York man who was injured when a balloon catheter burst while it was being inserted into an artery. In that case, the court, parsing the intent of Congress in the Medical Device Amendment of 1976, ruled that the fact the device was found safe by the U.S. Food and Drug Administration pre-empted the right of an injured patient to sue for damages in state courts.
As Orlando injury lawyers, we must wait to see what the court will do in the Levine case. Certainly, consumers deserve protection from dangerous products. However, it is so sad that politics and power so often places the interest of the people on the back shelf.
