Supreme Court Botches Preemption Case

D.C., March 4, 2009—The Supreme
Court handed down its decision this morning in the case of Wyeth v. Levine, ruling that federal law
did not bar plaintiff Diana Levine from suing pharmaceutical maker Wyeth over
allegedly insufficient drug safety warnings, even though the warnings had been
approved by the Food and Drug Administration. This case establishes the
troubling precedent that a sympathetic jury can now supersede the expert
opinions of drug makers, physicians and the FDA on what qualifies as adequate
safety labeling.

Ms. Levine lost an arm to gangrene after a physician’s assistant
injected the Wyeth drug Phenergan in such a way that it came into contact with
oxygen-rich arterial blood. Although the drug’s label explicitly warned that
doing so posed a high risk of tissue damage, Levine claimed that the label should
have instructed physicians not to use this intravenous “IV-push” method at all.
The Supreme Court held, by a 6-3 majority, that “Federal law does not pre-empt
[plaintiff Diana] Levine’s claim that [the drug’s] label did not contain an
adequate warning about the IV-push method of administration.”

According to Justice John Paul Stevens’ majority opinion, “The history of
the [Food Drug and Cosmetics Act] shows that Congress did not intend to
pre-empt state-law failure-to-warn actions.” Although true, the Court failed to
recognize that this is not a typical failure-to-warn case. As Justice Samuel Alito’s
dissenting opinion notes, Ms. Levine conceded that, in 1988, Wyeth proposed a
label change that “if followed, would have prevented the inadvertent administration
of Phenergan into an artery,” but that FDA rejected that language.

Nevertheless, Ms. Levine alleged
not only that the warning on Phenergan’s label wasn’t strong enough, but that
Phenergan was “not reasonably safe for intravenous administration,” and that
Phenergan’s label should have indicated that the drug “should not be used
intravenously.” But, that poses a question regarding FDA’s approval of the
product for that use, not Wyeth’s alleged negligence in drafting the label

Consequently, the decision reaches
to the very core of FDA’s statutory competence. FDA made a regulatory decision
that the benefits of IV injection outweighed the risks, and the agency
permitted the product to be labeled accordingly. Furthermore, there are no
allegations that Wyeth hid any information about the risks of IV injection, nor
that any new information regarding the risks of IV injection have arisen that
would call that decision into question since FDA made it. So, letting a Vermont jury penalize
Wyeth for not ruling out IV injection on Phenergan’s label is tantamount to
letting a group of laymen over-rule FDA’s expert opinion regarding safety.

It would have been one thing if new
evidence of risk had arisen since FDA approved the label, or if Wyeth were
accused of hiding information from the FDA or mis-representing the data it did
provide. In such a case, exposing a drug manufacturer to tort liability would
not be over-riding FDA’s expert judgment. But that is decidedly not the case
here. Indeed, the negligent act that actually caused Ms. Levine’s unfortunate
injury was not an IV push injection into a vein, but the physician’s
assistant’s negligent administration. The physician’s assistant injected
Phenergan in such a way that it came into contact with Ms. Levine’s arterial
blood despite six label warnings against this very risk.  The physician’s assistant also administered a
dose twice as high as indicated on the drug’s label and continued to push in
the plunger despite Ms. Levine’s protestations of pain, again in direct
contravention of an explicit label warning.  More or sterner warnings regarding the risks
of intravenous injection would not have prevented Ms. Levine’s injury.

Thus, the Supreme Court could have
and should have held in Wyeth’s favor with a narrowly tailored opinion confined
to the facts of this case. Doing so would not have insulated wrong-doers from
punishment, but would have recognized that Congress gave FDA statutory
authority over questions of safety and efficacy because it believed that only a
federal expert body could effectively balance the benefits and risks of new
medicines. As Justice Alito’s dissent makes clear, “the ordinary principles of
conflict pre-emption turn solely on whether a State has upset the regulatory
balance struck by the federal agency.” That is exactly what has happened here. So,
not only is the majority’s decision bad policy, it’s also bad law.


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