By a 6-3 vote, the high court ruled that labeling approvals by the U.S. Food and Drug Administration do not pre-empt state laws and shield companies from legal damages as part of liability claims.
A Vermont jury awarded $7 million in damages to a guitarist, Diana Levine. Part of her arm had to be amputated after she was improperly injected with the anti-nausea drug Phenergan made by Wyeth as part of treatment for a migraine.
The justices affirmed a Vermont Supreme Court ruling that upheld the award and rejected Wyeth's argument that labeling approvals by the FDA pre-empts state law liability claims.
The case hinged on whether FDA regulations pre-empted state law in this case, with the Supreme Court holding that they do not where Congress has not explicitly given the FDA that authority.
Yesterday the Court heard arguments in the matter of Capterton v. A.T. Massey, a case arising out of West Virginia. Dahlia Lithwick has a good summary of the issues faced by the justices:
In 2002, a West Virginia jury determined that the A.T. Massey Coal Co. had fraudulently forced competitor Hugh Caperton into bankruptcy. Massey's CEO, Don Blankenship, promptly appealed, having warned Caperton: "We spend a million dollars a month on lawyers, and we'll tie you up for years." West Virginia has only one appellate court—its Supreme Court. Concerned about his odds on appeal, Blankenship spent $3 million of his own money to take out sitting Justice Warren McGraw by backing his opponent in a 2004 judicial election.
Blankenship's $3 million represented 60 percent of the total funding of a 527 group called (what else?) "And for the Sake of the Kids." The group ran creepy election ads accusing McGraw of (what else?) setting a pedophile loose in the schools. McGraw lost his seat on the state high court to an unknown lawyer called Brent Benjamin. And in a Disney-like rotation of the circle of life, the newly elected Chief Justice Benjamin then voted 3-2 to reverse the verdict against Massey. Asked to recuse himself from hearing the case, Benjamin refused. Twice.
At issue is whether the appearance of bias is so great as to violate the due process rights of the plaintiff in the case. Which would seem to be an obvious conclusion in this case, but the real problem for the Supreme Court is defining a standard that can reliably be applied to appearance of bias cases like this. Of course the real problem is that judicial elections in most states have become a campaign funding free for all, but given the Supreme Court's history of avoiding limiting meaningful campaign contribution reform solving the increasing expense of judicial elections can only happen at the state level. As even businesses, who spend more money than anyone else on judicial campaigns, become even less comfortable with a system where it appears you can buy justice, there might be a chance for such reform in the coming decades.