Every Consumer Has A Stake In Vermonter’s Election-Eve Day In Court

When Vermonter Diana Levine has her day in the highest court in the land today, every American consumer will have a stake in the outcome. 

 Like an escalating number of the U.S. Supreme Court’s decisions in recent years, this case reaches into the lives of ordinary Americans in profound ways.  Largely unknown yet to most Americans, those decisions are reshaping our constitutional rights to privacy, free speech and full access to justice.  The Senate Judiciary Committee held a series of hearings this summer to examine the implications to all of us of some of the Court’s lesser-known decisions.

On the docket today is the case of Diana Levine, a talented Vermont musician from Marshfield whose arm was amputated after she was injected with a drug to treat nausea.  In a suit filed against the drug maker for failing to include crucial information on its warning label, a Vermont jury awarded Ms. Levine damages for injuries that forever altered her life and career.  The jury’s verdict was affirmed by the Vermont Supreme Court.  But the drug maker – Wyeth -- is pushing to have that verdict overturned in the U.S. Supreme Court by arguing that mere approval by the Food and Drug Administration of the drug’s label means that no state laws -- like Vermont’s -- should apply to any resulting injuries.  The justices’ ruling in Ms. Levine’s case will affect the millions of Americans who use prescription drugs and may suffer avoidable injuries.  Corporate accountability and the right of American citizens to seek justice in their state courts hang in the balance. 

By this point in the Bush years it should be no surprise that the Bush Administration is taking the drug companies’ side against consumers, putting corporate profits above all else.  If the Court overturns the Vermont jury’s decision, even the most misleading, inaccurate or insufficient drug label, if okayed by the FDA, will immunize a company from virtually all attempts by injured consumers like Ms. Levine to receive compensation.  State court decisions involving defective or mislabeled drugs are an important complement to the FDA approval process, and state proceedings have comfortably coexisted with FDA regulation for decades.  Ms. Levine’s case is a perfect example of why the Supreme Court matters to everyone.  The company has fought Ms. Levine all the way to the Supreme Court and now wants extraordinary protection at the public’s expense.    

The Court’s decisions have already had tremendous impact in other areas that affect Americans’ financial security, including the way in which the credit card industry has reshaped its practices in recent years.  While working families struggle to stay within their budgets, credit card firms have increasingly piled on fees and outrageous interest rates to boost their profits.  In 2008 credit card companies are expected to earn $19 billion in penalty fees alone, on top of profits from interest rate charges, which account for nearly half of their annual revenues.  State legislatures and attorneys general cannot police these abusive and unfair practices by national banks operating in their states -- because of a Supreme Court decision that defined “interest” as including fees and penalties, putting those beyond the reach of state regulation.  In siding with banks over the traditional role of the states to protect consumers, the Supreme Court enabled a new era of abusive lending practices that will punish ordinary Americans well into the future.   

The Supreme Court has also played its part in the mortgage mess by adhering to the same deregulation philosophy that underlies this and earlier banking decisions.  Last year a divided Court held that a state-based mortgage lending subsidiary of a national bank was beyond the reach of state consumer protection regulations addressing mortgage lending.  The result was that mortgage lending subsidiaries of national banks were unrestrained in their lending practices and immune from any state laws, while state-based mortgage lenders were subject to applicable state laws.  It is now painfully apparent that much of the mortgage lending industry was incapable of operating responsibly in a loosely regulated environment.  The Supreme Court’s decision preventing state laws from applying has again hurt consumers.

We have recently seen how a one vote majority eliminated Lilly Ledbetter's pay discrimination verdict by misconstruing congressional intent.  The danger is real of the Court striking down still more laws passed by Congress to protect workers, consumers, retirees, religious minorities, and the environment. 

During this historic election, I hope Vermonters, and all Americans, will carefully consider the future of the Supreme Court.  The biggest corporate polluters and anti-consumer lobbyists are certainly paying attention.  Seven of the nine justices seated on the Court were appointed by presidents of one political party.  American voters must understand that the next president will likely make at least two lifetime appointments to the Supreme Court.  Some of the most important cases to come out of the Supreme Court recently were decided by one- or two-vote margins.   A change or shift in just one or two votes on the Court may usher in a complete reversal of many of our most cherished protections.  That should be enough to get every American’s attention. 

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[Senator Patrick Leahy (D-Vt.) is the chairman of the Senate Judiciary Committee.  In August he filed an amicus brief with the Supreme Court on behalf of Diana Levine, available on the Leahy website (leahy.senate.gov).  Oral arguments in Wyeth v. Levine are set for Monday, November 3.]

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Leahy’s Supreme Court Brief On Behalf Of Vermont Musician Diana Levine

WASHINGTON (Monday, Nov. 3) -- Senator Patrick Leahy (D-Vt.) is a “friend-of-the-court” party to a Vermonter’s U.S. Supreme Court case, which is set for oral arguments before the Court on Monday.  Leahy was joined in his “amicus” legal brief, filed in August, by 17 members of Congress, including Vermont Senator Bernard Sanders and Vermont Congressman Peter Welch. 

On January 18, 2008, the Supreme Court granted review in Wyeth v. Diana Levine, a case in which a Vermont jury awarded damages to Levine, a musician from Marshfield, Vermont, who sustained life-altering injuries due to a drug manufactured by Wyeth.  Wyeth is seeking to overturn the Vermont Supreme Court’s decision, which affirmed a jury verdict in Levine’s favor. 

“Diana Levine is a successful musician in Vermont, and the tragedy she suffered that has had a profound impact on her career, should have been prevented,” said Leahy.  “A number of recent Supreme Court decisions have stripped protections for every day Americans in favor of shielding large corporations from liability.  The Court’s decision in Ms. Levine’s case could have far-reaching effects on the ability of all Americans to seek justice in their courts when they are injured by a defective pharmaceutical drug.  I hope the Court takes the opportunity to reject the views of Wyeth and of the administration that mere approval from the Food and Drug Administration of a drug label immunizes a drug maker from liability when a consumer is injured or killed.  In over 70 years of enacting and amending the laws governing the regulation of pharmaceutical drugs, Congress never intended this perverse result."

An amicus brief is filed by an outside party that believes the court’s decision in a specific case may affect its interests.  Leahy has filed just 10 such briefs in more than 30 years in Congress.  In this case, Wyeth and the administration seek to ascribe to Congress an unfounded intent to displace state tort law.  Joining Leahy on the brief were Sanders, Welch, Senators Edward M. Kennedy, Sheldon Whitehouse, Tom Harkin, Dianne Feinstein, Richard J. Durbin, and Russell D. Feingold, and Representatives Henry A. Waxman, John Conyers, Jr., John D. Dingell, Frank Pallone, Jr., Bart Stupak, Zoe Lofgren, Linda Sanchez, Debbie Wasserman-Schultz, and Maxine Waters.

“Petitioner Wyeth ascribes to Congress a considered judgment to displace state tort remedies and strip consumers of their right to receive compensation for injuries caused by inadequate warnings on the part of drug manufacturers.  But Congress has made no such judgment.  To the contrary: when Congress enacted the [Food, Drug and Cosmetic Act (FDCA)] 70 years ago, it deliberately preserved state-law damages claims.  Since that time, Congress has consistently understood that federal law does not preempt state-law failure-to-warn claims with respect to drugs approved by the FDA.  This understanding has been fortified by settled practice under the statute.  For decades, innumerable state-law actions involving FDA-approved pharmaceuticals have been prosecuted to final judgment or settlement,” the brief filed Thursday reads.

Leahy has chaired two hearings of the Senate Judiciary Committee this year to examine the impact of Supreme Court decisions on Americans’ daily lives, including examinations of cases that have denied consumers the benefits of state laws that guarantee reasonable interest rates, fairness in home mortgage lending, workplace anti-discrimination laws, and meaningful consumer choice in arbitration.  Leahy also chaired a hearing last year about how Bush administration agencies, such as the FDA, are overriding congressional intent and state authority.

Earlier this year Leahy joined with Kennedy, Sanders, Durbin, Harkin, Whitehouse and others to introduce the Medical Device Safety Act, a bill that would reverse a Supreme Court decision handed down earlier this year which immunized medical device companies from state lawsuits brought by patients who are injured by faulty medical devices.


In 2000, Diana Levine was treated in a Vermont hospital for symptoms associated with migraine headaches.  She was injected with Phenergan, a narcotic manufactured by Wyeth and used to treat nausea linked to migraine headaches.  The drug was injected into Levine’s arm in a manner that caused arterial contact – which was known by Wyeth to cause serious infection – leading to the amputation of her arm.  A Vermont jury found that despite its ability to do so, Wyeth failed to revise its labeling to warn of these dangers.

Levine’s lawsuit against Wyeth was decided in her favor, and the jury’s verdict awarding damages was upheld by the Vermont Supreme Court, which rejected Wyeth’s arguments that federal regulation concerning drug labeling prohibited her suit.  Wyeth has appealed to the Supreme Court, backed by the Bush-Cheney administration, arguing that the claim is preempted by Federal law, because the drug has been approved by the Food and Drug Administration (FDA). 

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The text of the amicus brief is available online.

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