Philip Harnett Corboy Jr. Responds to Chicago Tribune Commentary on Diana Levine (March 2009)

Below is a response by ITLA President Philip Harnett Corboy Jr. to a commentary that appeared in the Chicago Tribune on March 12. The Tribune elected not to print the response.

Mark Herrmann opines on "bad law" in his March 12th commentary "The Tragedy of Diana Levine," To the contrary, Diana's case, which went all the way up to the United States Supreme Court, is a perfect example of a very good law that allows consumers access to the courtroom in order to hold drug companies and other corporate defendants responsible when they fail to provide adequate warnings for the safe use of their products.  Regulations are a necessary first step, but when government regulations fail, as they did in Diana Levine's case, the legal system provides important checks and balances.

Diana Levine was a bass player and author of children's music in Vermont.  One day she complained of migraine headaches and sought treatment for the nausea that accompanied her pain.  The drug that was administered intravenously made contact with her arteries, which in turn lead to the development of gangrene in her arm. Tragically, her arm had to be amputated.  The drug's manufacturer, Wyeth, and the Federal Drug Administration (FDA) had been aware for decades that this could happen, yet, shockingly, this information never appeared on the drug's label to warn of this type of injection.  Wyeth claimed at trial that the FDA approved the labeling and therefore was immune from liability, regardless of the consequences of this poorly designed label on its drug.  Wyeth's defense was that it had complete immunity from lawsuits.

Instead of keeping Americans safe from products, the Bush administration hatched a plan to save big corporations from lawsuits.  The administration was fixated with this type of "silent tort reform."  Prior to year 2001, before the Bush administration, the FDA had a long held policy that even the most thorough of regulations concerning  products introduced to the public might  fail to identify potential problems and that individual state tort liability claims resulted in a significant layer of consumer protection.  That extra layer disappeared during the Bush years.

A strong majority of Americans believe that access to the civil justice system is an important safeguard for victims and a crucial mechanism for holding companies accountable for other errors and omissions.  The Bush administration and its allies, including Wyeth, worked to circumvent the civil justice system.  This tactic protected big business and large drug makers, and left the average American unable to fight back.

The 6-3 decision by the United States Supreme Court is a sweeping victory for consumers.  It is the average person's access to the courtroom that helps to uncover known drug hazards and provides incentives for drug manufacturers to disclose these safety risks promptly.

Philip Harnett Corboy, Jr.
President
Illinois Trial Lawyers Association
Chicago