Suit limits weighed for drugmaker

Last update: November 3, 2008 - 11:01 PM

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On the day before the presidential election, the Supreme Court debated an important legal legacy of the outgoing Bush administration.

Two years ago, the administration said drugmakers should be shielded from being sued by injured patients if federal regulators have approved warning labels that weigh the risks of a prescription drug.

The justices appeared to be closely split Monday on whether to uphold or reject the administration's approach. The court heard arguments in the case of Diana Levine, a Vermont musician whose arm was amputated after she was injected with an anti-nausea drug. The injection struck an artery and caused gangrene.

Her lawyer called this a "catastrophic" and well-known risk of injecting Phenergan, a drug made by Wyeth. Levine sued the company in a Vermont court and said doctors and nurses should have been warned against injecting Phenergan. A jury agreed and awarded her $6.7 million in damages.

At issue for the Supreme Court is whether the federal Food and Drug Act blocks state lawsuits that conflict with federal regulations.

How could the FDA have concluded that an IV push was safe and effective, Justice Samuel Alito asked.

Justice Ruth Bader Ginsburg said: "No matter what benefit there was, how could the benefit outweigh that substantial risk?"

Wyeth's counsel, backed by the Bush administration, argued that once a drug's warning label gets FDA approval, consumers cannot pursue state law claims that they were harmed.

JUSTICES TO DECIDE CONVICT'S RIGHT TO DNA TESTING

The Supreme Court will decide whether, years after his conviction, a defendant has a constitutional right to test genetic evidence found at the crime scene.

The justices, in an order Monday, accepted the appeal of prosecutors in Alaska. They asked the court to overturn a federal appeals court ruling in favor of William Osborne, who was convicted of rape, kidnapping and assault in an attack on a prostitute in 1993 near the Anchorage airport.

The Ninth U.S. Circuit Court of Appeals said Osborne has a right to subject the evidence to advanced DNA testing, which was not available at the time of his trial.

Forty-four states and the federal government have laws that give convicts access to DNA testing, but Alaska does not.

UNIONS CHALLENGE POLITICAL PAYROLL DEDUCTION BAN

Idaho's teacher and firefighter unions confronted a divided Supreme Court.

The court's most conservative justices suggested that Idaho was within its rights to block local governments from making payroll deductions that fund political activities. These justices insisted that this restriction did not infringe on the unions' free-speech rights.

Pointedly, Justice John Paul Stevens said Idaho still lets local governments make deductions for a charity such as the United Way while denying them for unions. Stevens' observation underscored the argument that Idaho was interfering with unions' protected speech.

An Idaho victory would make it harder for unions to finance political action committees.

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