Leahy Files Supreme Court Brief On Behalf Of Vermont Musician

 

Case To Be Argued Before High Court In November

 

WASHINGTON (Thursday, August 14, 2008) – Senator Patrick Leahy (D-Vt.) Thursday filed a petition in the United States Supreme Court concerning a case the nation’s top court will hear later this year involving Vermont resident Diana Levine.  Leahy was joined by 17 members of Congress, including Vermont Senator Bernard Sanders and Vermont Congressman Peter Welch, in filing the petition, known as an amicus brief, on Thursday. 

 

On January 18, 2008, the Supreme Court granted review in Wyeth v. Diana Levine, a case in which a Vermont jury awarded damages to Levine, a musician from Marshfield, Vermont, who sustained life-altering injuries due to a drug manufactured by Wyeth.  Wyeth is seeking to overturn the Vermont Supreme Court’s decision, which affirmed a jury verdict in Levine’s favor.  Oral argument in the case will be heard on November 3, 2008.

 

“Diana Levine is a successful musician in Vermont, and the tragedy she suffered that has had a profound impact on her career, should have been prevented,” said Leahy on Thursday.  “A number of recent Supreme Court decisions have stripped protections for every day Americans in favor of shielding large corporations from liability.  The Court’s decision in Ms. Levine’s case could have far-reaching effects on the ability of all Americans to seek justice in their courts when they are injured by a defective pharmaceutical drug.  I hope the Court takes the opportunity to reject the views of Wyeth and of the administration that mere approval from the Food and Drug Administration of a drug label immunizes a drug maker from liability when a consumer is injured or killed.  In over 70 years of enacting and amending the laws governing the regulation of pharmaceutical drugs, Congress never intended this perverse result.”

 

An amicus brief is filed by an outside party that believes the court’s decision in a specific case may affect its interests.  Leahy has filed just 10 such briefs in more than 30 years in Congress.  In this case, Wyeth and the administration seek to ascribe to Congress an unfounded intent to displace state tort law.  Joining Leahy on the brief filed Thursday were Sanders, Welch, Senators Edward M. Kennedy, Sheldon Whitehouse, Tom Harkin, Dianne Feinstein, Richard J. Durbin, and Russell D. Feingold, and Representatives Henry A. Waxman, John Conyers, Jr., John D. Dingell, Frank Pallone, Jr., Bart Stupak, Zoe Lofgren, Linda Sanchez, Debbie Wasserman-Schultz, and Maxine Waters.

 

“Petitioner Wyeth ascribes to Congress a considered judgment to displace state tort remedies and strip consumers of their right to receive compensation for injuries caused by inadequate warnings on the part of drug manufacturers.  But Congress has made no such judgment.  To the contrary: when Congress enacted the [Food, Drug and Cosmetic Act (FDCA)] 70 years ago, it deliberately preserved state-law damages claims.  Since that time, Congress has consistently understood that federal law does not preempt state-law failure-to-warn claims with respect to drugs approved by the FDA.  This understanding has been fortified by settled practice under the statute.  For decades, innumerable state-law actions involving FDA-approved pharmaceuticals have been prosecuted to final judgment or settlement,” the brief filed Thursday reads.

Leahy has chaired two hearings of the Senate Judiciary Committee this year to examine the impact of Supreme Court decisions on Americans’ daily lives, including examinations of cases that have denied consumers the benefits of state laws that guarantee reasonable interest rates, fairness in home mortgage lending, workplace anti-discrimination laws, and meaningful consumer choice in arbitration.  Leahy also chaired a hearing last year about how Bush administration agencies, such as the FDA, are overriding congressional intent and state authority.

 

Last month, Leahy joined with Kennedy, Sanders, Durbin, Harkin, Whitehouse and others to introduce the Medical Device Safety Act, a bill that would reverse a Supreme Court decision handed down earlier this year which immunized medical device companies from state lawsuits brought by patients who are injured by faulty medical devices.

 

Background:

 

In 2000, Diana Levine was treated in a Vermont hospital for symptoms associated with migraine headaches.  She was injected with Phenergan, a narcotic manufactured by Wyeth and used to treat nausea linked to migraine headaches.  The drug was injected into Levine’s arm in a manner that caused arterial contact – which was known by Wyeth to cause serious infection – leading to the amputation of her arm.  A Vermont jury found that despite its ability to do so, Wyeth failed to revise its labeling to warn of these dangers.

 

Levine’s lawsuit against Wyeth was decided in her favor, and the jury’s verdict awarding damages was upheld by the Vermont Supreme Court, which rejected Wyeth’s arguments that federal regulation concerning drug labeling prohibited her suit.  Wyeth has appealed to the Supreme Court, backed by the Bush-Cheney administration, arguing that the claim is preempted by Federal law, because the drug has been approved by the Food and Drug Administration (FDA). 

 

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The text of the amicus brief is available online.