On March 9, 2009, the Detectives’ Endowment Association of the City of New York Police Department (“NYPD DEA”) Health and Welfare Fund (the “Fund”), issued a press release applauding the U.S. Supreme Court’s 6-3 ruling earlier this week in Wyeth vs. Levine. The decision effectively preserves the rights of consumers to bring lawsuits against drug companies where they fail to adequately warn of known health risks associated with their drugs. The decision also helps stave off efforts by the drug companies to preclude health and welfare funds from recovering compensation for losses funds incur by overpaying for defective drugs and by paying for medical expenses for members are injured by dangerous drugs.
Ms. Levine, a musician, had to have her arm amputated after gangrene set in from an IV push of Phenergan, a drug marketed by Wyeth. Ms. Levine sued Wyeth, claiming that the company failed to provide an adequate warning. A jury sided with Ms. Levine, finding Wyeth liable for nearly $7 million in damages. Wyeth appealed, arguing that it was immune from lawsuits over the adequacy of the label because Phenergan’s label was approved by the FDA. Indeed, Wyeth argued to the U.S. Supreme Court that FDA regulations precluded it from placing a stronger (safer) label on Phenergan. The U.S. Supreme Court rejected this argument, making clear that the FDA regulations create a floor, not a ceiling, on what drug companies are required to include in their warning labels for pharmaceutical drugs.
Last year, before the case was argued before the Court, the NYPD DEA Health and Welfare Fund (the “Fund”), along with other health funds, doctors, and consumer advocates, filed an amicus (friend of the court) brief with the U.S. Supreme Court supporting the plaintiff, Diana Levine. The Fund’s counsel on the brief was a team of appellate and mass tort attorneys at Bernstein Liebhard LLP. Ms. Levine’s counsel, during oral arguments before the Court on November 3, 2008, cited the Fund’s amicus brief to argue that “had Wyeth been a reasonably prudent manufacturer over the years, [Wyeth] would have known that the risks of IV push so far outweigh any. . .negligible benefits, that it would have. . . [and] moved to revise its label[.]”
Michael Palladino, President of the NYPD DEA, stated: “The DEA was pleased to take a strong stance in support of working men and women on such an important national issue. We are vigilant in protecting our members’ rights on all fronts, including in the courts as necessary. We are of course very pleased that the Court sided with us on this one. The lawyers at Bernstein Liebhard did an outstanding job on the brief and in representing our Fund and fellow amici before the U.S. Supreme Court.” (emphasis added).