TorteDeForm

Justinian Lane

New England Journal of Medicine Sides with Plaintiff in Levine

I earlier covered the NEJM editorial that condemned FDA preemption as dangerous.  Now all of the editors have written a brief in the Levine case on the side of the plaintiff.

In a first, the current and former editors of the New England Journal of Medicine have banded together and plunged into an escalating legal battle over how much FDA’s approval of drugs should shield their makers from liability claims under state laws.

The influential doctors take the side of plaintiffs, arguing that lawsuits are a needed check to protect consumers from dangerous medicines.

A case called Wyeth v. Levine is on the docket at the Supreme Court this fall, and the editors and four big-name contributors to the journal have filed a brief in support of the plaintiff, Vermont musician Diana Levine who lost an arm after an injection of the nausea drug Phenergan. She claims Wyeth failed to adequately warn of the drug’s risk and won a judgment of $6.8 million in a Vermont trial.

The NEJM signers say it’s the first time that the full roster of current and former editors of the journal has come together on a court brief.

Source: Health Blog : NEJM Editors Enter Supreme Court Fray Over Drug Risks

Hmm… the most influential doctors in the world agree that preemption puts lives at risk, while a group of corporate lobbyists argue the opposite.  Who do you think is right? 

Justinian Lane: Author Bio | Other Posts
Posted at 12:50 PM, Aug 15, 2008 in FDA | Federal Preemption
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Comments

I don't know - aren't doctors also part of the Greedy Trial Lawyer Conspiracy?? According to my mom, who wanted me to be either, they were part of the same group.

But yes, given the enormous range of folks who are starting to speak out loudly against preemption, it will be harder and harder to turn this into a cabal of "plantiffs' lawyers" (which, as you know, is the polite way it is put).

I am genuinely concerned about the industry - and you know I mean this sincerely. I have argued for a long time that nothing could be worse for them - as well as for everyone else - than preemption.

How much more loss of public trust can they stand?

Posted by: HG | August 15, 2008 2:04 PM

That's the nail on the head. As the sheer falsity of the doctors vs. lawyers tort "reform" myth comes to light, more and more people will begin to see where their interests fall in this debate.

I have a mentor who just wrote an amicus brief on the Levine side of this case as well, who has worked with physicians and former FDA officials who've seen firsthand how the preemption argument is destroying innocent people's legitimate claims. Companies are using the preemption argument to, in some cases literally, get away with killing people.

Posted by: Kia | August 15, 2008 6:36 PM

Preemption isn't the problem - the problem is ineffective regulation by the FDA and additional litigation will never solve that problem>. It will continue to pour millions into the pockets of good citizens like John Edwards (snicker)

Posted by: Avenger | August 16, 2008 3:50 AM

I object Avenger. The FDA might prevent this sort of injury, but the person who is in the best position to prevent the injury is the one who caused it. Put the balme where it belongs. The FDA does not make people whole after they have been injured by the negligence or malfesance of those who are in the best position to protect the consumers of their medical products.

The John Edwards comment is out of line. If premepted, people will have no recourse to recover compenstation from a debilitating injury that a drug company caused. Which is better - no justice, or imperfect justice? I prefer justice.

Posted by: Clarinet Esq. | August 16, 2008 12:10 PM

The John Edwards comment would be out of line if it were not true. It is true and Edwards extorted millions of dollars for undeserving clients and his own pocketbook through emotional appeals to juries and use of junk science. It is because these kinds of miscarriage of justice occur that fim, consistant nationwide standards for these kinds of cases are so necessary to justice

Posted by: Avenger | August 17, 2008 4:07 AM

Avenger,

Might I suggest you actually do a little research into subjects you know nothing about. If you actually walked into a courtroom once in a while and saw judges and juries considering evidence in cases, you might appreciate how serious they are in their deliberations.

I suppose you're a fan of the death penalty, but don't trust juries and judges to decide whether someone has caused another person life-changing harm? Are you just jealous that you haven't got the time, talent, and desire to help people who have been seriously injured?

The John Edwards canard is getting pretty tired, even Rush Limbaugh is having a hard time getting laughs with it.

Posted by: Steve | August 18, 2008 11:01 AM

The failure to warn claim has no merit now. If any patient reported a new side effect on the internet, notice has been given. If the side effect pops up on the first page of a Google search, the duty of the maker has been fulfilled.

Posted by: Supremacy Claus | August 18, 2008 4:03 PM

Well Stevie - back at you

1) I am anti-death penalty except in cases involving
treason as I do not believe juries are capable of being fair in its application. I am also basically pro-Life

Since 1979 I have served on six juries (four criminal, two civil) and have been foreperson three times. On the two civil mnatters the jury found for the defendant once and for the plaintiff once (we didn't give him the huge windfall he was seeking however). In the criminal trials we convicted three times and were hung once - a case in which a black man was accused of assault and battery - I was one of two people who voted "not guilty" . While I suspect that the accused probably was guilty, I felt the prosecution had not proved its case "beyond a reasonable doubt", a standard that should apply to all litigation involving claims of bad faith and punitive damages

So don't tell me I don't know of what I speak

Posted by: Avenger | August 18, 2008 6:02 PM

Avenger, other than clearly hating plaintiffs, why do you assume that Edwards's infidelity means that his clients were all "undeserving" or that the jurors who heard their cases were not as clever as you were?

Posted by: mythago | August 18, 2008 7:22 PM

The unasked question is why lawsuits are necessary to compensate victims of medical malpractice and harm from dangerous medicines and drugs.

The legal theory is that compensatory damages should put the person should be put in the same position they were in before they were injured and that punitive damages should be to punish and prevent the same bad act from happening again. So, if a musician lost the use of her arm, and therefore of her profession, she should be compensated for that loss.

Of course, it is important to ask WHO should pay for this compensation that she deserves. Should it be the drug company? Should it be nobody? Should it be the government? IMHO, the government should establish a fund to compensate victims of bad drugs, like they did for vaccines. And the company who hid the dangers should pay the punitive damages. If we had health care and universal insurance, we would not have as many tort suits against private companies...since the government would pick up the tab.

Posted by: Ubu Walker | August 19, 2008 11:04 AM

I certainly not anti-plaintiff - I would guess that 75% of all tort claims are completely legitimate. It's on the other 25% that I am anti-plaintiff.

I really dislike plaintiffs who feel that an accident to their two-year old should set them up for life. I dislike plaintiffs who feel that "someone owes them", even if the party that they seek money from isn't the someone who caused their injury

And yes, juries can scare me, when they use their emotions rather than their intlligence to make decisios. I became anti-death penalty when I saw the blood lust of my fellow jurors in a case where the prosecution hadn't begun to prove its case. And I have sat through many a voir dire where one side or the other (usually either the criminal defense attorney or the civil plaintiff attorney0 consciously and successfully) tries to "dumb down" the jury.

Posted by: Avenger | August 19, 2008 6:35 PM

I certainly not anti-plaintiff - I would guess that 75% of all tort claims are completely legitimate. It's on the other 25% that I am anti-plaintiff.

I really dislike plaintiffs who feel that an accident to their two-year old should set them up for life. I dislike plaintiffs who feel that "someone owes them", even if the party that they seek money from isn't the someone who caused their injury

And yes, juries can scare me, when they use their emotions rather than their intelligence to make decisios. I became anti-death penalty when I saw the blood lust of my fellow jurors in a case where the prosecution hadn't begun to prove its case. And I have sat through many a voir dire where one side or the other (usually either the criminal defense attorney or the civil plaintiff attorney0 consciously and successfully) tries to "dumb down" the jury.

Posted by: Avenger | August 19, 2008 6:36 PM