Wyeth v. Levine

After the Wyeth v. Levine argument, I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough.

We can put the nail in the coffin in the idea that this is a pro-business Supreme Court: the 6-3 Wyeth v. Levine decision is the worst anti-business decision since United States v. Von’s Grocery, 384 U.S. 270 (1966). Justice Thomas’s confused concurring opinion is especially disappointing, as it declares an abdication of the Supreme Court’s appropriate structural role to prevent individual states from expropriating the gains from interstate commerce.

Sell your pharmaceutical stocks now, because the Supreme Court just declared it open season on productive business. One should now fear the coming decision in the as-yet-to-be-briefed Clearinghouse v. Cuomo, and the effect that is going to have on an already battered banking economy, as well.

Beck and Herrmann have first thoughts, but are likely to be relatively quiet thereafter.

Update, as Walter points out in the comments, see also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors, dating back to when the case first began making headlines.

Contrary to the suggestion of Justice Thomas, Dan Fisher, this is not a “victory for federalism” by any stretch of the imagination: federalism is a two-way street, and permitting states to impair interstate commerce through a litigation tax upsets the federalist structure of the Constitution. See, e.g., Epstein and Greve.


  • Declared open season? I think they declared business as usual.

  • Note also Andrew Grossman’s post at Point of Law, and the earlier coverage at that site by numerous authors including Ted, dating back to when the case first began making headlines.

  • Even if one dislikes this decision, is it not the case that all that the court has held is that pharmaceuticals are preempted by the existing federal legislation and that the Congress can bring about preemption if it wishes to do so by making it explicit? It isn’t as if the court has outlawed preemption.

  • Oops. I left out a not above. It should read: “pharmaceuticals are NOT preempted by the existing…”.

  • @3: See Epstein and Greve why that’s the wrong presumption to use.

  • Wyeth v. Levine: The Supreme Court Rejects Judicial Activism for Drug Makers…

    As you’ve probably heard at sites like Overlawyered and Drug & Device Law, the sky is falling upon us because the Supreme Court didn’t override Congress and the FDA and decide to pre-empt state failure-to-warn tort suits against prescription drug…

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  • Obviously at least six members of SCOTUS can’t understand modern society. The Pharmaceutical industry has a duty to proceed with care. The FDA is a mechanism that verifies that companies do proceed with care. When they approve the warning insert, then that warning insert should be OK. The whole idea of the exercise is that every adverse outcome can be blamed on something, making pharmaceuticals uneconomic. Logic and justice say that you can’t make the Levine decision after the fact.

    Could somebody explain why a drug would be helpful with blood in veins and dangerous with blood in arteries? It is mighty strange to me.

  • William,

    Read the comments over at Volokh here:


    It looks like it’s an issue of blood flow. The arterial blood is heading out towards all those capillaries in the limb and the drug damages and destroys them. Gangrene is the inevitable result from the loss of blood flow to the tissue.

  • I propose that all labeling be removed and just the phrase “Death will occur if you screw up” appears on evry bottle…along with the name of the drug and the dosage…and basic administering techniques…and pictures of what to do….a test to see if you actually know what your doing…and…and…and….CRUD! Now we are right back where we started.

    To me the ruling was correct it’s just that we all want the courts to act when the legislature won’t. What’s more appalling is that the press does not highlight what’s going on.

    Question: Did the hospital/Staff/Etc. admit, either by their settling or otherwise, to mis-administering the dosage? If so, how would changing the label make it safer?

    No labeling would ever make a person more capable. Nor should any labeling make a person more cautious as each dosage needs to be administered correctly and with the same amount of accuracy and safety, within human ability.

  • The FDA was not created to replace state regulations, instead it was created to supplement existing state regulations. I prefer a court that errs on the side of the people, rather than on the side of big business. Kudos to Thomas for sticking with his principles. I can’t say the same for Roberts-Alito-Scalia triumvirate.

  • William Nuesslein

    Arteries can go into spasm and allow clots to block them completely. This is what causes heart attacks and strokes. If you inject a mediation in a small artery that can cause clots, you are essentially stroking out what ever tissue that artery feeds. Veins on the other hand are like low pressure drainage ditches. They flow from small to large and the medication gets diluted as it goes up. Also veins do not spasm and have valves that can prevent the clots from going farther up.

  • throckmorton

    Wouldn’t your plumbing theory apply to any injection. Injections of Penicillian was popular when I was a child, yet I never heard of a gangrene complication until Levine. The spasm part of your theory might be it. The drug is supposed to relieve pounding headaches and might interfere with the pumping in arteries. Thanks for the comment.

  • You dont want to give pennicillin in an artery because the same thing can happen. It does and can happen. There tends to be more spasm with phergan and related compunds. The use in migraine treatment is different and relates to the seratonergic pathways.

  • throckmorton

    You bring up a very important issue, that injections in and of themselves can cause gangrene. If that is true then which medicine is injected is a mute point and the Vermont litigation is absolutely incompetent as is our Supreme Court. Could you talk to Walter Olson or Ted Frank about this. I think it deserves a separate post.

    I was glad that Chief Justice Roberts got it right on this case. He has the talent to be a great justice, but he messed up the school case. I am saddaned thst Associate Justice Breyer made a fool of himself again. The Carbon Dioxide ruling was beyond the pale too.

  • Don’t blame the Supreme Court for this travesty of justice. The Court got it right with a minor victory for federalism, which would be great if only they would be more consistent. State law seems obviously idiotic. Anyone who did not consider Wyeth’s warning label adequate is not a serious person. But it’s not the job of the Supreme Court to fix bad state tort law unless the Constitution explicitly forbids that law.

  • More Wyeth v. Levine reactions…

    Our own Jim Copland and Paul Howard of the Manhattan Institute, in the Washington Times; Gordon Crovitz, in the Wall Street Journal. More: Russell Jackson (via Beck & Herrmann), Carter @ ShopFloor, Daniel Fisher @ Forbes, Ted Frank @ Overlawyered,……

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