Musician’s case headed to Supreme Court today

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(Host) In just a few hours from now, the U.S. Supreme Court will open its November session.

In the audience will be a Vermont lawyer and his client. Their case caps a legal journey that began eight years ago with a horrible medical injury.

The outcome could determine the rights of people to sue companies over dangerous products.

VPR’s John Dillon reports:

(Receptionist) "Rubin, Kidney, Meyer and De Wolfe…. Yes, she is.. Just a minute.. OK. … have you been arraigned yet?"

(Dillon) Richard Rubin’s law office is on Main Street in Barre. A restaurant and hardware store are across the street. The windows rattle as trucks rumble by

It’s an unassuming setting for a small town lawyer to take on the pharmaceutical industry, the Bush Administration, and the U.S. Chamber of Commerce.

But a lawsuit that began here is now the top business case before the U.S. Supreme Court.

(Rubin) "The stakes are the rights of Americans to seek fair compensation when they’ve been injured by unsafe prescription drugs.”

(Dillon) Rubin represents Diana Levine, a musician from Marshfield, who lost her arm because of a medical disaster.

Levine suffers from migraine headaches. Eight years ago, she went to a health clinic for treatment. She was given an injection of the Wyeth drug Phenergan to treat the nausea associated with the severe pain.

The injection hit a tiny artery in Levine’s right arm, and caused a horrible reaction. She ended up having her arm amputated just below the elbow.

Levine sued Wyeth. Rubin argued that the company knew – but failed to warn patients — that the injection method could cause serious harm.

A Vermont jury awarded $6.7 million. Rubin says the case was not all that complicated.

(Rubin) "We had our experts explain to the jury why the product was not safe. Wyeth had a couple of witnesses, one of whom actually kind of agreed with us that the label should not have allowed this method of administration. And then we told the jury Diana’s story about her injuries and her expenses and the jury rendered its verdict. The whole thing took three and a half days.”

(Dillon) But Levine has never seen a dime of that jury award. Wyeth appealed the case to the U.S. Supreme Court. The company argues that because the federal Food and Drug Administration approved its warning label, Levine should be barred from any claims in state court.

Here’s how Wyeth lawyer Bert Rein sees it.

(Rein) “Remember, this is a case in which the FDA made a fully informed decision. They knew everything there was to know, because Wyeth told them everything there was to know.”

(Dillon) But if Wyeth wins, the rights of people who are injured in the future could be curtailed. Richard Rubin says he won’t make the argument on Monday; they’ve got a specialist in Supreme Court litigation for that job. But he sums up the case this way:

(Rubin) “For 70 years, the courts, the FDA, Congress has all said the suits of private litigants and the states against drug companies when the products are unsafe are appropriate… It’s the Bush Administration, in the last three to six months of this administration, who are pushing this sea change in the law.”

(Dillon) In Marshfield, Diana Levine is trying to rebuild her life, and her art. She can’t play guitar anymore without a right hand. But she has written songs using the piano.

Levine picks up one of her recent CDs and looks at the lyrics.

(Levine) “This is the album I was doing, the  first recording project I went back into after I lost my arm because I knew I had to, I had to do it, because I would just die without my music.”

(Dillon) The words tell of love and loss – she wrote the song after her husband and collaborator died of cancer. But there’s another meaning as well.

(Levine) "And to think I was singing these lyrics. They are totally apropos to what I was experiencing. So it goes: `Save me, I’m going under, I’m drowning from losing him. Around me is rolling thunder. It’s down to sink or swim.”’

(Dillon) When the Supreme Court convenes today, Diana Levine will be there. She says she wants the justices to see her face – and her injury.

For VPR News, I’m John Dillon in Montpelier.

AP Photo/Toby Talbot

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