I do not know if you read my prior post regarding the Wyeth v. Levine decision from the United States Supreme Court, but here is a postscript.
In an op-ed piece published in the Chicago Tribune under the heading “The Tragedy of Diana Levine,” (http://www.chicagotribune.com/news/chi-oped0313malpracticemar12,0,4620990.story), Wyeth lawyer Mark Hermann quoted the dissenting opinion from Justice Alito that the warnings already on the labeling for Phenergan were sufficient, and further warnings would have made no difference:
“As Alito wrote, ‘the physician assistant…disregarded at least six separate warnings that are already on Phenergan’s labeling, so (Levine) would be hard pressed to prove that a seventh would have made a difference.’”
Apparently, Justice Alito, along with sore losers Hermann and Wyeth, forget that the function of the jury in our judicial system is to make factual determinations regarding exactly these questions – whether a different course of action would have made a difference. In countries where there is no jury system, people (often women) who are victimized must rely upon other people (usually men) in black robes to tell them what the facts are. We have seen the judicial process differently for 220 years. We believe in juries, and the right of everyone to have their judged by a representation of their peers.
Mr. Hermann, Wyeth and Justice Alito are whining about the very core of American justice. They do not wish to argue a legal principle; they seek to relitigate the facts. They believe it is appropriate for a court of appeals to substitute its opinion for that of a jury. This is nothing short of hijacking justice. It is “judicial activism,” which conservatives – including those joining the chorus of Wyeth Wailers – have derided for years. Of course, as with everything else in politics, judicial activism is fine with Republicans as long as someone else’s ox is being gored.
Justice Alito was nominated to the Supreme Court by President G. W. Bush precisely to counter the trend toward “activist judges” put in place by his predecessors (could he have meant to include his father?). Here we have Justice Alito, joined by other latter day judicial activists Chief Justice Roberts and Justice Scalia, dissenting because the rest of the Supreme Court refused to engage in the worst form of activism. They sought to “read into” (meaning rewrite) the law authorizing the Food & Drug Administration a provision that said any warning approved by the FDA preempted, or prevented, any state court from finding that warning inadequate. There is nothing in the law enacted by Congress that prohibits such lawsuits. Until there was a new majority of “conservative jurists” on the Court, drug companies never thought they had a prayer of making this preemption argument stick.
These three justices, however, sought to do more than rewrite a federal statute. They effectively tried to rewrite the Constitution itself. The Seventh Amendment to the Constitution grants a right of trial by jury in civil cases, and further states that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” Nothing in the common law would allow the type of re-examination of the efficacy of the Wyeth warning attempted by Justice Alito. Perhaps we need our judges to focus on more of these Amendments than the Second. As with the Commandments, the Bill of Rights is a decalogue, and all ten are worth preserving.
There is one other point made by Mr. Hermann in his essay, and here is where he departs from exhorting about the way the law should be and gets downright mean. In criticizing a jury’s finding that Ms. Levine was entitled to $7 million in damages for the amputation of her arm (she was a professional musician), Hermann says the following:
“Although it is hard not to feel sympathy for Levine, it is equally hard not to be disturbed by the court’s decision. Levine had already obtained compensation for her injury—her $700,000 malpractice settlement—from her health-care providers. She needed no more from a second lawsuit.”
Excuse me, but who died and made Hermann king? Is he truly making the point that $700,000 is a fair value for the loss of an arm, after two painful surgeries, a lifetime of phantom pain, and the loss of a musical career that included writing and performing classical music for children? Would he deem it a fair exchange if we were to cut off his arm and give him $700,000? I expect he, unlike Ms. Levine, could continue his career in law with only one arm. How does he justify imposing his view of the value of human suffering on others? How can he justify giving the government that power? If the government can second-guess a jury’s decision as Hermann wants the Supreme Court to do, we will soon have the government deciding in advance what a human life is worth. Imagine that – having the value of a human life placed on a chart, like a Blue Book for Used People.
Do you think that is just imaginary? Well, friends, it is not in Texas. In Texas, our legislature has decided exactly what your life is worth, but only if you are killed by a doctor or hospital. In Texas, you are worth $250,000. In almost all medical malpractice cases, you can recover your lost income and medical expenses (subject, of course, to the drastic limitations on malpractice coverage offered by most carriers who cover doctors in Texas). But the value of you – your life, your pain and suffering, the love and guidance you give your children – has been set by our legislature at a quarter million dollars, dead or alive. After attorney’s fees and expenses, you or your heirs may see $100,000 of that.
In Texas, Ms. Levine would have lost twice. She likely would have recovered far less than the $700,000 settlement she received from the hospital, unless her lost income and medical expenses totaled $450,000, and I expect they did not. She would have lost a second time because our legislature has passed a law that creates FDA preemption where the Supreme Court says it does not exist.
Mr. Hermann would undoubtedly love it here in Texas.
Steve Waldman – swaldman@gwlawyers.com
