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Pleasant Surprises


Diana Levine, a professional musician, developed gangrene after taking Phenergan through a direct injection and had her arm amputated below the elbow. A jury in Vermont held that the drug’s manufacturer had failed to provide sufficient warning about the risks inherent in injecting the drug. The company appealed, arguing that because the drug and label were FDA-approved, the suit was “pre-empted” by federal law. I fully expected the Supreme Court to side with the manufacturer.

Happily, I was mistaken. The Court today held 6-3 that no federal law pre-empted the Vermont civil verdict. Stevens’s majority opinion didn’t deny that the federal government could pre-empt such suits, but held that there was not, in fact, any federal pre-emption:

In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.

Chamber of Commerce favorite Stephen Breyer concurred to express his disdain for torts but agreed that there was no pre-emption in this case. The surprise vote in favor of Levine came from the Court’s most principled conservative, Clarence Thomas, who argued for a revision of federal pre-emption doctrine that would narrow federal power. Inevitable vote for the business interest Sam Alito wrote the dissent, joined by Roberts and Scalia.

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