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Location: Statewide, Delaware, United States

In 1978, I opened Delaware’s first suburban law office to respond to the overwhelming need for legal services for the middle income consumer. The rich always could afford attorneys and the poor had free legal services. Middle income consumers always were left out in the cold. Since that time, our firm’s focus has been to help those in the middle. We’ve helped protect the rights of thousands of people in all areas of the state. I am proud of our track record and the help that we have given to middle income Delawareans.

Sunday, December 21, 2008

Preemption: A Legal Term- You Need to Know About

Preemption: A Legal Term- You Need to Know About

The U.S. Supreme Court is considering a matter this term that could have far reaching ramifications on the consumer's fundamental ability to bring a lawsuit for negligence.

A Vermont jury awarded Diane Levine $4,000,000.00 against a drug manufacturer: The Wyeth Company. She alleged and the jury agreed that the pharmaceutical company failed to warn her adequately about the risks of one of its drugs. In Diane Levine's case, a label had been issued by Wyeth warning of some side effects. But the jury had found that the label was not strong enough and did not give enough information to her about adverse side effects. As a result, most of her right arm was amputated after taking the medication in question. The verdict was affirmed as being being fair based on law and fact by the Vermont Supreme Court.

However, Wyeth now seeks to reverse that decision based on a legal concept called Preemption. This is a doctrine that could bar injured consumers from suing in state courts where the products that hurt the consumer had met some federal standards. In Diane Levine's case, the FDA had approved the drug and the label. They argue that because of this approval, all lawsuits have been barred or "Preempted" by Federal (FDA) action.

A second preemption case, this one concerning cigarette labels, has also been argued to the U.S Supreme Court.

Business groups have vigorously pushed for Preemption, hoping to build an argument against injury suits. Consumer lawyers oppose preemption doctrines, saying they short-circuit valid claims arising from terrible injury. They say that a jury made up of community members should decide whether Wyeth should pay;not a FDA bureaucrat in Washington.

We'll know soon whether or not the Supreme Court will permit consumers to proceed to court to seek redress of their claims. Let's hope that the Supreme Court rejects this Preemption doctrine to keep our courts open for injured victims.


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