Plaintiffs Lawyers Fight Restrictions
WASHINGTON — Since 2001, the Bush administration has steadily whittled away the ability of consumers and other groups to sue corporations for damages related to their products.
The case of Diana Levine, who lost her right arm to gangrene after receiving a shot and now wears a prosthesis, has broad implications for liability suits.
Now plaintiffs’ lawyers are fighting back by raising money to battle a Supreme Court case and to support candidates seen as sympathetic to their cause in the November congressional elections.
At stake are billions of dollars in potential product-liability lawsuits. Some corporations are already getting tough in settlement talks. Judges have put on hold some cases, including three involving GlaxoSmithKline PLC’s antidepressant Paxil, pending a Supreme Court ruling.
“It is a war,” said Houston attorney Ed Blizzard, a member of the plaintiffs’ lawyers task force to fight regulations that pre-empt plaintiffs’ right to sue.
The Supreme Court case, Wyeth v. Levine, which is to be heard Nov. 3, could affect lawsuits involving products such as cars, toys and flammable mattresses.
Corporate defense lawyers are also girding for battle. A spokesman for the Chamber of Commerce Institute for Legal Reform said, “Pre-emption will be one of the top issues in Congress next year, and we’ll be focusing significant resources on it.”
Trial lawyers are expected to be heavily outspent. The chamber, which has helped drive the pre-emption and tort-reform campaign, intends to raise $40 million for political candidates this year.
The Bush administration has over the past few years circumvented Capitol Hill by weakening regulatory agencies’ safety rules and adding introductions, called preambles, to public-safety regulations that effectively prohibit plaintiffs from suing at the state level, where safety standards can be tougher than those at the federal level.
Pre-empting plaintiffs’ right to sue will come under the microscope in the Wyeth case. The case centers on Diana Levine, a professional guitarist who lost an arm to gangrene after a receiving a shot to treat a migraine headache in 2000.
Ms. Levine won $6.8 million in her lawsuit against Wyeth, which makes the antinausea drug, phenergan, that was given to her. A Vermont jury and that state’s Supreme Court found that Wyeth hadn’t sufficiently warned the public and doctors about the drug’s dangers if improperly injected.
Wyeth has argued that the company is protected because the Food and Drug Administration had approved its label. The government is supporting Wyeth’s position, on behalf of the FDA.
Trial lawyers are so concerned about the case that in April they quietly pushed out Public Citizen, the advocacy group founded by Ralph Nader, as the attorneys for Ms. Levine, and replaced them with a legal team led by nationally known Supreme Court litigator David Frederick.
Public Citizen attorney Brian Wolfman said, “I have thought from the start that we would win this case at the Supreme Court, and I am working very hard toward that end.”
Members of the trial lawyers’ lobby, the American Association for Justice, are financing Mr. Frederick’s fees and producing amicus briefs.
The fallback plan for trial lawyers and consumer advocates is to persuade Congress and the White House to pass laws guaranteeing the right to sue. To that end, they are backing select congressional candidates who support the issue.
In mid-July, corporate attorneys representing drug companies and plaintiffs lawyers met for their respective annual conventions blocks away from each other in Philadelphia. A focus for both sides was the Wyeth case.
Company defense attorneys at the Drug and Device Makers Preemption Conference were upbeat. “Diana Levine is a very sympathetic plaintiff,” said an attendee, but he said he thinks the Supreme Court will side with the defense bar.
The Bush administration has denied that it has a broad program aimed at pre-empting plaintiffs’ right to sue. But it has tapped tort-reform supporters as legal advisers in several agencies.
Jay Lefkowitz, a former general counsel at the Office of Management and Budget under the Bush administration, said, “Product-liability lawsuits challenge FDA sovereignty, undercut having one label standard, increase costs and render drugs much less safe.” Mr. Lefkowitz helped recruit Dan Troy to work as the FDA’s top lawyer from 2001 to 2004. “Dan promoted a more-robust pre-emption agenda,” Mr. Lefkowitz said.
The FDA began filing numerous legal briefs in state and federal courts favoring pre-emption, though it had previously supported plaintiffs’ suits.
Mr. Troy, who was recently named general counsel for GlaxoSmithKline, declined to comment.
“This is back door tort reform,” said Mr. Blizzard. “The administration is using bureaucrats to do what they can’t in any legislature.”
Dozens of lawsuits against drug makers could be dismissed if the justices side with Wyeth.
Some drug companies are telling plaintiffs’ lawyers that if they settle their cases now, they won’t pay as much to the plaintiffs as they would have six months ago, before the Supreme Court announced that it would hear the Wyeth case. A lawyer negotiating a settlement with one drug maker said company executives told him it wants “the Wyeth discount.”
–Jared Favole contributed to this article.
Write to Alicia Mundy at email@example.com
Corrections & Amplifications
Jay Lefkowitz was general counsel at the Office of Management and Budget in 2001, not deputy counsel as incorrectly reported in a previous version of this article about pre-emption of product liability lawsuits by the Bush administration.