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Kia Franklin

Right Now on Firedog Lake

Live Chatting with Diane Levine... take your questions to FiredogLake.Com (login required).

UPDATE: 3:44pm EST. I asked Diana Diana what she would say to proponents of implied preemption, who say that efforts like hers are just about helping plaintiffs lawyers. She said in response the following:

I never envisioned myself as someone who would sue. It’s certainly not about me getting a new Mercedes or house in Provence. It’s about holding a company who is at fault responsible, and inspiring them to change the label and prevent this from occurring again. I’m up here in Vermont with a country lawyer who is supremely ethical. There has to be a mechanism in place.

Nan Aron of Alliance For Justice also responded:

There are multiple groups beyond the “trial bar” that are interested in the outcome of Diana’s case. In fact, career professionals inside the FDA, including former FDA commissioner David Kessler, have spoken out against preemption. But, also, consumer and health and safety groups, the Journal of American Medicine, various states attorneys general and a host of other organizations are against this radical shift.

It's a good discussion going on over there. They're talking about the mechanics of the case, what happens after the Supreme Court issues a ruling, how the November 3rd arguments went, and what Diana's personal experience has been over the past ten years pursuing this claim.

Go check it out while they're still on!

UPDATE 3:50pm EST.

I asked Nan Aron of Alliance for Justice if he sees preemption reaching "kitchen table" status with the broader general public. Here's Nan's response:

This issue absolutely impacts millions of Americans. And, because of that it is inherently a “kitchen table” issue. Every person taking a prescription drug - from antibiotics to cholesterol medicine - has a stake in the outcome of this case.

If the case is decided against Diana, the solution will be to push for remedial legislation in Congress. Already both the House and the Senate have introduced legislation to this effect. And, we will continue to urge people to join this campaign and sign our petition at http://ga1.org/campaign/accessdenied.

FINAL UPDATE, 4:15pm EST. The conversation at FireDogLake was really informative. I hope some of you were able to join in, or at least read the comments. The discussion went in many directions but I think the most important thing I drew from it relates back to these words from Diana Levine. She wrote: "I know I’ll never get my arm back, but I hope the loss of limb doesn’t become loss of limb and liberty."

The consensus over there seemed to be that this issue isn't about being able to sue big companies. It's about being able to protect ourselves and other innocent people from harmful products that either should not be on the market or should be marketed in a way that advances the public's health and safety.

Christy Hardin Smith of FDL advocates for more public education and awareness-raising about this issue, which to date seems only to generate interest from legal nerds and consumer advocates who are already entrenched in these issues. Nan Aron points out that an increase in public awareness about preemption is necessary precisely because it can impact so many of us. Aron rights: "This issue absolutely impacts millions of Americans. And, because of that it is inherently a “kitchen table” issue. Every person taking a prescription drug - from antibiotics to cholesterol medicine - has a stake in the outcome of this case."

I'd be interested to hear what proponents of implied preemption have to say in response to the conversation over at FDL.

Kia Franklin: Author Bio | Other Posts
Posted at 3:04 PM, Nov 18, 2008 in Pharmaceuticals | Preemption | Product Liability | Right to Access the Courts | Supreme Court Rulings | Tort Victim Tragedies | Under-regulation
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Comments

Question. Why do lying, crybaby plaintiffs get in the media with their bogus claims, but defense attorneys forbid their clients from speaking to anyone?

Posted by: Supremacy Claus | November 19, 2008 7:14 AM

Not sure. You'll have to show me such a situation, complete w/ facts to back it up, before I can speculate. Why do trolls troll?

Posted by: Kia | November 21, 2008 8:09 PM

"It's about being able to protect ourselves and other innocent people from harmful products that either should not be on the market or should be marketed in a way that advances the public's health and safety."

Except that this case is really about a method of administering the drug, and whether FDA-required labeling allowing the drug to be injected a certain way should preempt state tort law findings disallowing that method of delivering the drug.

The facts are pretty unflattering for Levine's case. There were warnings aplenty on the FDA-approved label, including specific warnings about gangrene and amputation. There were warnings not to inject the drug inadvertently into arteries. These were ignored by the doctor's assistant, who injected the drug precisely in the way the label warned against (into her arteries instead of her veins).

I don't see why the drug company should be liable as a result of the doctor's negligence.

Neither the FDA nor Wyeth are seeking field preemption. Just preemption when an actual conflict occurs. Plaintiffs will still be able to sue in state courts if a drug company withholds information from the FDA, or else does not act upon new information regarding harm in its drugs. These are not precluded on a narrow finding of preemption.

At oral argument, even counsel for Levine admited that there CAN BE a hypothetical case for preemption. (It's just that the facts happen not to give rise to conflict in Levine's particular case.) This is fatal to the general anti-preemption crowd: by conceding that preemption can arise given the right set of facts, you concede the impossibility of wholesale rejection of implied preemption. In which case, the anti-preemption case is gutted, and the Levine result merely turns on the facts of the record.

Accordingly, the preemption question is framed wrongly, and orthogonal to the result. Levine can "win" even if preemption is found. It depends on how the record is parsed. Personally I think she has no case based on the record. But we'll see.

Posted by: anonym | November 22, 2008 8:17 AM

Kia: Look above, at the interview of this plaintiff, and your link to it, for an example of open complaining in the media by plaintiffs to pressure the defense, to bias the jury pool, with emotional, legally invalid appeals to the bias of the public.

As to trolls, the lawyer trolls the nation, is totally responsible for the economic crisis, and will generate a massive number of false charges and lawsuits against lenders. The lawyer caused the crisis, and will generate massive make work for itself.

Posted by: Supremacy Claus | November 22, 2008 11:46 AM