HealthLawProf Blog

Editor: Katharine Van Tassel
Concordia University School of Law

Friday, October 31, 2008

Some at FDA Oppose Rules Against Suing Drugmakers

The Washington Post reports that congressional investigators said Wednesday that top scientists and career employees at the FDA opposed agency regulations that weaken consumers' ability to sue drugmakers.  The Washington Post writes,

Gavel4At issue is language in a drug labeling rule from 2006 that effectively limits when people can sue in state court over injury claims involving medications. The FDA contends federal regulations prevail when there is a conflict with state law. This concept is called preemption.

Internal agency documents showed that career officials opposed this approach, according to a report released by Rep. Henry A. Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. In the past, the agency had viewed private suits as an additional layer of protection against unsafe drugs, the report said.

"Much of the argument for why we are proposing to invoke pre-emption seems to be based on a false assumption that the FDA approved labeling is fully accurate and up-to-date in a real time basis," the report quoted John Jenkins, a doctor who oversees the FDA's new drug reviews, as saying. "We know that such an assumption is false."

Patients injured by drugs have won suits against drug manufacturers for failing to warn against certain dangers.

In a case to be argued before the Supreme Court on Monday, a Vermont woman sued Wyeth after she lost her right arm below the elbow following a high-volume injection of the drug Phenergan. The injection accidentally punctured an artery, prompting gangrene to set in. Diana Levine argued that the company had a duty to warn consumers that such injections could have devastating consequences. The state courts agreed, awarding her nearly $7 million.

Wyeth appealed, saying it was protected from such suits. It argued that a state court cannot overrule the FDA's judgment on label warnings.

FDA scientists had weighed the risks and benefits of Phenergan, used to treat nausea and allergies, when it approved the prescribing literature, or label, as a guide for doctors. The FDA was aware of risks associated with injecting some forms of Phenergan, but the label did not specifically warn about the technique used with Levine.

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