Phenergan (Promethazine)

Wyeth Not Such Good News for Texans

On March 4, 2009, the Supreme Court of the United States (SCOTUS, to those “in the know” and Tom Clancy fans) issued a landmark ruling in Wyeth v. Levine. The issue was “Preemption,” the doctrine that (according to Wyeth) mandates that when the federal government (acting through that bastion of patient safety, the Food & Drug Administration) says a product is safe, mere mortals in the state courts are powerless to say otherwise. Drug companies, and many other industries regulated by the federal government, have been asserting the preemption defense for years. The Bush Administration loved preemption, and its lawyers were cheerleaders (and often brief-writers) in support of big industry against individuals maimed by dangerous products.

In a 6-3 decision that pleasantly stunned many of us who represent victims, SCOTUS held that FDA approval of a product’s labeling did not preempt a “failure to warn” claim against Wyeth regarding its anti-nausea drug Phenergan (“Promethazine” to those in the generic world). You could hear the consumer advocates and trial lawyers shout and holler praise at this decision. We finally won one before SCOTUS! Even Clarence Thomas voted for us!

Those of us in Texas, however, could only manage a muted “Hip Hip” but not a “Hooray,” for this decision did nothing to undo a nasty bit of legislation, passed by the Tort Reformers of the Texas Legislature in 2003 (“TROTSK3” to those reading this blog), that enshrined in Texas statutory law the very idea of FDA preemption that SCOTUS just rejected. Section 82.007 of the Civil Practice & Remedies Code (“CPRC” to those in the law biz) creates a “rebuttable presumption” that any warning blessed by the FDA is adequate under Texas law and cannot be the subject of a lawsuit based upon the manufacturer failing to warn a health care provider (doctor or nurse) or a consumer of a danger inherent in the drug. The full text of the section is reprinted below. The CRPC, by the way, is the place where Texas lawmakers write laws that affect lawsuits. In other words, it is a breeding ground for mischief by those folks who have the money to get (I did not say buy) the votes in Austin to advance their political-economic interests. Yes, I’m talking about TROTSK3s. Read the whole CPRC and you will need a large dose of Phenergan.

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