The pro-pre-emption crowd, still reeling from the Supreme Court’s decision rejecting pre-emption in the landmark Wyeth v. Levine, frequently defers to one statement from Justice Samuel Alito’s dissent in the case. Chief Justice John Roberts and Justice Antonin Scalia joined Alito in noting, “This case illustrates that tragic facts make bad law.”
The tragedy in Levine is palpable. Diana Levine visited a Vermont health clinic in 2000 for treatment of a migraine. A nurse administered Wyeth’s anti-nausea drug Phenergan via the IV-push method, a known risk factor for accidental arterial injection. The drug’s label noted that when Phenergan entered the artery it could cause gangrene. This happened to Levine, and her hand and forearm had to be amputated, with clear impact on her career as a bass player and composer.
