Supreme Court considers whether drug companies can poison patients and get away with it

The country is in rough shape.

IAN MILLHISER
JAN 4, 2019, 9:25 AM

Almost two decades ago, a professional guitarist named Diana Levine received an injection of a drug called Phenergan. It was supposed to relieve nausea from a migraine. Instead, it triggered irreversible gangrene.

Levine lost her right forearm and her livelihood. With just one hand, she could no longer play the guitar.

Levine’s lawsuit against the drug’s manufacture, Wyeth v. Levine, triggered a minor panic in the consumer rights community when it reached the Supreme Court a decade ago. The business-friendly Roberts Court seemed likely to absolve Wyeth of liability and leave Levine with nothing.

Instead, the Court broke 6-3 in Levine’s favor, with Justices Anthony Kennedy and Clarence Thomas crossing over to vote with the Court’s liberal bloc.

Ten years later, a similar case involving closely related legal questions is before the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, which will be argued on Monday. But the Court itself looks very different. Justices John Paul Stevens, David Souter, and most significantly Kennedy, are all retired — and all of them were in the majority in Levine. Kennedy’s replacement is a hardline conservative likely to join the dissenters from Levine.

https://thinkprogress.org/clarence-thomas-poison-drug-merck-624b1ce0ed43/


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The question in cases like Merck and Levine is whether someone in her unfortunate position should have to bear this burden alone. Or whether it is fair to ask a company that has profited handsomely off a particular drug to give up some small portion of those profits to ensure that someone injured by that drug should not be left destitute.

As the California Supreme Court explained in a famous and more rudimentary case, in an ideal world, “the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.”

Justice Thomas, for his part, was not moved by these humanitarian arguments. His separate opinion in Levine was rooted largely in states’ rights. State governments, he reasoned, should not have to set aside their own tort law lightly because of a perceived conflict with federal law.

In Merck, we are likely to discover whether that esoteric objection to an aggressive preemption doctrine will be enough to save the Diane Levines of the future.



I am not going to hold my collective breath with this right wing Federalist Society court of these 5 people being on there, after all there is one justice that it was just fine and dandy that employee should have frozen to death while sitting in the company truck with frozen brakes..................... .....................and he shouldn't even be on the court..................