TorteDeForm

Kia Franklin

Something else to look out for in early November

SupremeCourt.jpg An important case will be heard on November 3rd, one day before Election Day.

The L.A. Times had a great article yesterday on the upcoming Wyeth v. Levine Supreme Court case, which will determine whether a person has a right to sue drug manufacturers for injuries to patients caused from the corporation's failure to give adequate drug warnings.

The wrong ruling in this case would not only represent yet another blow to our system of justice; it will also mean a real person with tragically real injuries will be left with no legal recourse for what she would never have experienced if the drug maker had acted more responsibly and posted proper warnings. And as for her injuries, we aren’t talking about just hurt feelings or scraped elbows here—Mrs. Levine, a professional guitarist, lost her arm because the drug maker failed to warn against the dangers of administering the drug through injection.

Levine told the LA Times that when she originally won her case: "It was so reassuring to think, 'My God, our system of justice really works.' "

Not so fast, said Wyeth, the drugmaker with an intriguing legal track record that is at the other end of this case.

It appealed Levine's favorable verdict and the Supreme Court agreed to hear the case to determine whether the fact that its drug was FDA approved shields the company from liability for Mrs. Levine's injuries.

Standing right behind Wyeth are the usual suspects from the corporate lobby, a group that appears to stop at nothing to prevent ordinary people from being able to stand up to corporate abuse (after all, that would interfere with profits). This is the same group that believes there should be arbitrary limits on compensation to victims of medical malpractice, defends the practice of forcing ordinary people to take important disputes to a heavily biased arbitration system rather than a court of law, and supports allowing corporations to hide potentially harmful information about its products from the public through the use of secret settlement agreements. Boil all of these agenda points down, and whose interests does this group seem to represent?

Certainly not yours or mine, but I guess that should come as no surprise.

Hat tip to ThePopTort and the LA Times

Photo By Franz Jantzen, Collection of the Supreme Court of the United States, available at www.supremecourtus.gov

Kia Franklin: Author Bio | Other Posts
Posted at 2:35 PM, Sep 08, 2008 in In the News | Increasing Safety | Preemption | Right to Access the Courts | Supreme Court Rulings
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Comments

Fascinating how there is no mention of or even attempt to rebut the fact that Wyeth's position is legally correct -- simply assertions that courts should rule on political and ad hominem grounds.

Even aside from the fact that the policy arguments are wrong and put trial lawyer profits ahead of people's lives, this is as good an example of this blog's disrespect for the rule of law as any.

Posted by: Ted | September 9, 2008 9:32 AM

Ted,

Federal preemption has been discussed ad nauseum. I've yet to see one public interest group support federal preemption. Let me clarify that last sentence by defining public interest groups as groups that are not funded by the pharmaceutical industry or the US Chamber of Commerce.

I seem to think that a woman who lost her arm due to a hazard a jury thought Wyeth knew and should have warned consumers about is exactly why we have a civil justice system. But I guess in your eyes a woman receiving compensation for her injuries is "trial lawyer profits". Why is that worse than the undeserved windfall presented by eliminating tort liability for the wrongful conduct of pharmaceutical companies?

Posted by: Steve | September 9, 2008 12:31 PM

Ted,

Federal preemption has been discussed ad nauseum. I've yet to see one public interest group support federal preemption. Let me clarify that last sentence by defining public interest groups as groups that are not funded by the pharmaceutical industry or the US Chamber of Commerce.

I seem to think that a woman who lost her arm due to a hazard a jury thought Wyeth knew and should have warned consumers about is exactly why we have a civil justice system. But I guess in your eyes a woman receiving compensation for her injuries is "trial lawyer profits". Why is that worse than the undeserved windfall presented by eliminating tort liability for the wrongful conduct of pharmaceutical companies?

Posted by: Steve | September 9, 2008 12:33 PM

Steve: All remedies have side effects.

1) The lady should get Medicaid for her injury, and prosthesis. That she cannot play music is bad luck. The public should not pay for bad luck.

2) If you develop strict liability in drug manufacturing, it will end drug manufacturing in this country.

3) Torts is a remedy. Where is the evidence it is safe and effective? Why do lawyer get to impose remedies at the point of a gun without evidence of benefit?

Posted by: Anonymous | September 9, 2008 1:20 PM

Medicaid? Prosthesis? It's bad luck? She went in for a migraine and ended up without an arm, for God's sake. All that says to me is that "anonymous" has no compassion for human beings and no appreciation for concepts like accountability and responsibility for one's actions. It's not bad luck if it could have been prevented by taking a step as simple as warning people about administering the drug improperly. That is not bad luck, that is bad business.

And let's talk about bad policy and curbing unchecked profits. Let's talk about the horrible policy implications of allowing an under-resourced, ineffective regulatory argency to be the ONLY mechanism for protecting the public's health and safety against dangerous products. Let's talk about the incentives this structure creates for big pharma. Let's look at the fruit it bears, at all the people who have been harmed by bad fda approved drugs that slipped through the cracks because drugmakers didn't feel compelled to take the proper precautions before pushing these drugs. Let's talk about about the tremendous profits these corporations enjoy, while innocent people lose limbs and their livelihood.

As for lawyer profits, money earned defending the VICTIMS is not only nothing compared to industry profits, it is also FAR less problematic than the money drugmakers earn HARMING people and getting away with it.

Posted by: Kia Franklin | September 9, 2008 5:19 PM

Anonymous was me. I put in all information. Your website is defective. By its defect, it misled you to reply to one of my well reasoned rebuttals. I believe you may be eligible for money damages. You rebutted Anonymous with personal attack, a cult tactic.

The question asked was whether you could provide external scientific validation that a cumbersome, random, torts system's benefits outweighed its costs. I know of no benefit of a torts system to the public. I know, it generates a $trils for the land pirate. Torts causes massive damage to our economic growth, an anemic 3%, instead of the robust 9% of our underlawyered friends in Asia.

Posted by: Supremacy Claus | September 9, 2008 8:20 PM

SC: Shiver me timbers! It's all in good fun.

I hesitate to indulge your statistics question though, and get into the whole thing where I pick a study and you discredit it as a landpirate conspiracy. But please feel free to browse tortdeform.com, corpreform, the center for justice and democracy, commonweal, the brennan center, ... Or you can just ask anyone who's ever been discriminated against, defrauded, wrongfully injured, etc., and found justice through the courts.

Posted by: Kia | September 10, 2008 1:31 AM

Is anyone else going to acknowledge that Medicaid isn't the responsible party here? Why should the public pick up the tab for injuries caused by a responsible party...the drug manufacturer who already lost at trial?

As far as statistics saying that our economy isn't growing as fast as Asia...give them one year after our economy continues its meltdown...China won't be able to sell their junk products to us because we can't afford to buy anything other than food and heating oil this winter. I can certainly attest that the statistics commonly referred to by most economists are cooked numbers. A good example is the unemployment rate, the calculations were changed to include a birth/death model, immigration (legal and illegal), and no longer include people who have been out of work for extended periods. Our cooked unemployment rate is 6.1%, most of Europe is closer to 12%, China would fall into chaos and revolution if they approached that number. My point is that the true unemployment rate is closer to 12% than it is to 6% in the USA. Another good example is the government's core inflation statistics. It used to include the same constant products, now they substitute items to smooth the rate of inflation. They also discount items such as fuel which has increased costs throughout the economy. If you trust these statistics nowadays without question...you are foolish.

Take a look at your retirement accounts and tell me the economy is as rosy as the government keeps telling you. Take a look at your neighborhood with all the sale/rent signs. Take a look at the closed retail shops. Take a look at the banks/brokerages that are laying off workers left and right. None of this was caused by lawyers. It was caused by criminals both in our government (corruption failing to regulate) and criminals in the financial industry perpetrating the largest fraud in the last 80 years.

If you wish to destroy the only check on government and corporate power in exchange for cooked numbers controlled and manipulated by the government and corporations, then personally sign your rights away or move to China. As for me I'd rather stand up for my individual rights as an American citizen enumerated in our Constitution.

Posted by: Steve | September 10, 2008 11:19 AM

Preemption, aside from being legally correct in this case, makes consumers better off. There isn't a consumer group that isn't funded by trial lawyers that says otherwise.

Posted by: Ted | September 10, 2008 11:26 AM

Ted of course works for a group funded in part by the pharmaceutical industry, so if you're inclined not to believe consumer groups funded by attorneys, you shouldn't believe him, either.

And for the record, preemption isn't legally correct in this case.

Posted by: Justinian Lane | September 10, 2008 12:00 PM

Let's say a person is horribly injured in a clearly tortious way, the parties agree to $1 million settlement from insurance. The defendant considers that a bargain, and does not appeal it. Everyone approves the judgment. The drunken defendant even apologizes, is aghast at his wanton behavior, throws in $100K, everything he has, out of sincere remorse. It still took two years of discovery, and settlement talks.

The lawyer makes $400K (expenses plus contingency fee). Most of the rest is for care. The health industry makes $500K in rehab and follow up care. The victim is left with $200K in cash for a horrible injury, and can no longer work. He stretches it out to 10 years of living in abject poverty, for e.g no A/C in Arizona summer.

Where did every penny of that come from? The public, including that of the remorseful defendant volunteering the extra $100K. Either prices went up or access to product or service went down, or the defendant did not spend the money of his service and product providers.

Here is the Medicaid approach. Again, every penny came from the public.

Health follow up is at the discounted rate of $250K.

That's it. There is no more.

It took a week to qualify the plaintiff with a doctor's note.

Posted by: Supremacy Claus | September 10, 2008 3:45 PM

many things can be said about this hypo. i'll take 1 minute to offer thoughts:

since a small % of doctors make up a large proportion of med mal injuries, does your "doctors' note/Medicaid" fix occur repeatedly at the public's expense, with Medicaid paying for the negligent md's mistakes over and over again? and where's the remedy for the financial losses suffered by this innocent person due to his or her injury? i guess "too bad, bad luck" is your remedy?

i think the point on which we agree is that this gets paid for, somehow. the question is, how should these costs be met? the party responsible for the harm should not be able to pass the buck and continue committing harms at no cost to him/herself.

Posted by: Kia | September 10, 2008 5:48 PM

Why did the lady who lost her arm sue the drug company? She lost it because the drug was injected into an artery and not a vein. This was a nusring mistake. The answer of course is who has money.

You state "the party responsible for the harm should not be able to pass the buck and continue committing harms at no cost to him/herself". You are absolutely right, instead attorneys sue whoever has the money, not who is actually responsible.

Posted by: throckmorton | September 11, 2008 2:53 PM

Some of these questions about why she sued who she sued were answered on this livechat at FiredogLake, which is over now but you can read it here.

Posted by: Kia | November 18, 2008 4:05 PM