Wyeth v. Levine

     Here it comes. The determination of the right to sue. Next week, the Supreme Court is going to decide whether someone like Diana Levine has the right to sue a drug company for injuries that it has caused.

     Today, the Wall Street Journal has an analysis of both sides in this important case. At stake is whether a jury can decide damages or whether the FDA approval serves as a shield for drug companies. Imagine our founding fathers actually contemplating a governmental agency with such power.

     Diane Levine went to a medical clinic to receive a Wyeth medication for nausea, related to a migraine headache. The medication was injected so as to cause Ms.Levine to lose her arm. There was no warning on the Wyeth label, that such an injury could occur, while using their headache/nausea medication. A Vermont jury agreed and returned a verdict of 6.7 million. Next week, the US Supreme Court will determine whether a Vermont jury wasted its time. It will also give us an insight into the minds of the Justices' who proclaim their various interest in how they apply the Constitution. Of course, it is also a battle of whether Big Business has power over the Judicial system, versus States' rights and the rights of victims.

     As set forth in the Wall Street Journal, the Chamber of Commerce has spent millions of dollars to put forth the argument that Federal Preemption is good. They use the argument that basically sets forth,"Who do you want, the experts on the FDA to determine drug dangers, or a jury of 12". The Wyeth attorney has suggested that, perhaps, if the Court rules in favor of Wyeth and against the right to bring a claim, then Congress should set up a fund, to compensate victims for medical bills that would be a model like the Vaccine fund.

     The average person has come to recognize that the FDA is unable to oversee all the applications by drug companies. Repeatedly, Congressional hearings have brought forth such statements relating to the inadequacy of FDA staffing and, of course, the ability to influence a few on the FDA board. Plus, members of the FDA go back and forth between private drug company employment and the government position. It will be interesting to see how the Supreme Court deals with those issues and the rights of states. Where are those statesmen when we need them?