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Access Denied? Preemption Versus Corporate Accountability For Products Which Cause Injuries

[Please welcome Diana Levine and the Alliance For Justice to discuss an important case currently before SCOTUS. Because this case is under current consideration, having been argued on 11/3/08, I’d ask everyone to refrain from criticism of the current SCOTUS/justices in the comments — we don’t want anything to injure Diana’s chances.  We do want to bring the important issues of preemption and corporate responsibility to the fore, however.  Do take some time to watch the fantastic documentary Access Denied. — CHS]

What if big corporations didn’t have to worry about making safe products because they knew they couldn’t be taken to court even if their products caused serious harm? 

These are the stakes in Wyeth v. Levine, which was argued in front of the Supreme Court on November 3rd, and is one of the most important consumer rights cases to come along in years. We are thrilled to have Diana Levine with us today to share her story. As Diana’s case demonstrates, courts make decisions on a host of issues—health care and consumer safety just to name two—that affect every American.

To argue its case, Wyeth is relying on a radical new interpretation of an age-old legal theory called preemption.

For more than a hundred years, individuals harmed by unsafe products have been able to sue in state courts. But Wyeth now argues that if it receives permission from a federal agency, such as the FDA, to market a product, that permission preempts unsafe product lawsuits at the state level, even if the product turns out to be harmful.

If the preemption doctrine is so broadly applied, many corporations may lose an important incentive to keep their products safe, and those harmed would have no recourse.

For nearly 10 years, Diana has pursued her case so that what happened to her will not happen to the rest of us. Please join Diana and thousands of others in this fight. Together, we can support judges who understand the law’s implications for ordinary Americans. Together, we can tell Congress to pass legislation that protects our health and safety and holds corporations accountable.

We at Alliance for Justice were thrilled to work with Emmy-award winning filmmakers Jon Alpert and Matt O’Neill—you may know them from their great HBO documentaries Baghdad ER and Section 60—in telling Diana’s story. I hope you enjoy watching the film as much as we enjoyed making it.

Please, watch the film, tell a friend and sign the petition to stand up for our rights as consumers at Access Denied.

A note from Diana Levine:

I’m the Levine of Wyeth v. Levine, the human at the heart of one of the most important cases to go before the US Supreme Court this term. I’m the migraine-suffering musician rendered abruptly one-armed because Wyeth’s anti-nausea drug Phenergan was administered via IV Push and caused gangrene. I’m the woman whose jury of her principled peers ruled Wyeth be held accountable for a label that should have better warned about that particular nausea-fix, given the gangrene-risk.

The corporation, the FDA, the Administration–I wonder what the real people inside these bureaucratic organizations so willing to sacrifice my right arm to further their preemption agenda would say. Do you think any one person in the FDA would choose this method for their daughter’s nausea, when perfectly safe methods are available? Do you think any one person, be it President, Solicitor General, or any of the little people working for the big pharmaceutical giants would object to all medical personnel being warned of the dangers of using this method? Do you think a drug company that knows they could eliminate risk by a simple label change has the responsibility and the right to do so immediately? No matter what Wyeth’s lawyers may say, I still have supreme faith in the individuals that comprise these organizations, especially those who sit on the bench at the US Supreme Court will reject the arguments made by the drug company.

With one less hand, I’m still armed with a voice and here is my warning: The label for the anti-nausea drug Phenergan (and any equivalent generics) should carry with it a strong warning.

Hopefully, Wyeth will be motivated to provide necessary warnings on IV push should the Supreme Court uphold the decision made by that jury back in Vermont (I have all 4 fingers crossed).

Please welcome Diana and the folks from AFJ. And with that, I open the floor to your comments and questions.

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