Access Denied? The Fight for Corporate Accountability

February 3, 2009 | | Comments Off on Access Denied? The Fight for Corporate Accountability

Our chapter recently screened the documentary “Access Denied? The Fight for Corporate Accountability”, which features the tragic story of Diana Levine.

Levine, a professional musician,  was suffering from migraine’s and sought relief at a hospital. Due to faulty labeling on her medicine, Levine ended up having to get her arm amputated. A completely preventable error ruined her livelihood. 

The documentary, produced by the Alliance for Justice, follows Levine as she seeks a remedy in the federal court system. Seemingly every step she takes, Levine is thwarted by the legal issue of preemption.

Eventually, the Supreme Court granted cert on Levine’s case and it was argued on Nov. 3, 2008 (Wyeth v. Levine). Legal experts do not expect Levine to get the result she was hoping for, which will surely disappoint millions of Americans that seek to hold corporations more accountable.

After the film, we were happy to host Prof. Tortorice as he gave a lecture on the topic of statutory construction and federal preemption. 

The basic question presented is whether the FDA sets a floor of standards for the pharma industry that states are allowed to enhance with stricter rules?

Indeed, when Justice Kennedy asked Levine’s lawyer when preemption should apply, the lawyer said that if the FDA had adequately weighed the risks and benefits of the IV push method, and included those details on the label, then his client wouldn’t have a case. However, the lawyer argued, those details weren’t provided. Therefore, preemption doesn’t exist in this case. [WSJ]

Some argue that upholding the state law tort liability against Wyeth would essentially undermine the administrative system that empowers the experts at the FDA, who are carefully selected to weigh these risks in advance.

The case should be decided in the next few months.


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