Wyeth v. Levine: Inside the Preemption Case
Monday, November 10th, 2008Last week, the Supreme Court heard arguments in the long-awaited preemption case, Wyeth v. Levine.
For the first time, the highest court in the land is weighing in on whether federal approval of a drug preempts tort claims against a drugmaker, such as an injured consumer might bring in a state court. A decision for Wyeth upholding preemption could help end the proliferation of product liability and class-action lawsuits at the state level—as seen in the massive Vioxx litigation.
The details of the case verge on melodrama. A Vermont musician, Diana Levine, lost part of her right arm to gangrene after Wyeth’s anti-nausea drug Phenergan (mistakenly) came into contact with arterial blood.
Although the drug’s label carries a warning about this bizarre potential side effect, which can result from an improper emergency “IV push,” the plaintiff has argued that the drugmaker should have either made the warning more prominent or not sought approval for this specific technique. A Vermont court agreed with the plaintiff, ordering Wyeth to pay Levine $6 million in damages. Wyeth appealed. (more…)
