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Changing the landscape for .

Changing the landscape for FDA approvals - Mass High Tech Business News http://www.masshightech.com/stories/2009/04/06/daily28-Changing-the-.
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The case of Wyeth v. Levine involved administering Wyeth’s leave Lahive for
anti-nausea drug Phenergan by the “IV-push” method. Susan Levine, a McCarter & English
professional musician, suffered from migraines and received a needle- with-plunger injection of Demerol (for the headache) and Phenergan (for nausea). Because the latter drug accidentally entered one of Devices: Protect IP
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Levine sued on state law grounds, and a jury found that because the cyberkinetics
risk of gangrene and amputation could be almost always avoided by the “IV-drip” (a drip bag using saline solution) rather than the“IV-push” method (as was used). Wyeth was negligent and that IV-push-administered Phenergan was a defective product. Wyeth had been aware of the gangrene risk since at least 1967.
Wyeth’s defense relied on FDA approval, and therefore federal “preemption” of state law.
The FDA approved Phenergan in the 1950s, subject to labeling that included a generalgangrene warning. But over the years, even as Wyeth became aware that the IV-dripmethod all-but-eliminated the catastrophic risks, the company did not sufficiently update its label. After all, it argued, the label described the risk, and the FDA had approved thelanguage.
The Supreme Court held that Wyeth had a duty to update its labeling to reflect theknowledge that it acquired over the years. (Interestingly, Congress authorized the FDA onlyin 2007 to compel label revisions in the face of new [adverse] information.) FDA requirements, according to the court, are a “floor” and not a “ceiling” for state regulation.
The Wyeth result –- allowing a tort case to proceed even though there was FDA approval –- initially appears to contradict the Court’s decision a year ago in Riegel vs. Medtronic. There,the Court reviewed a different statutory section, which empowered the FDA to reviewmedical devices prior to introduction and explicitly pre-empted state regulation. As a result,the court in the 2008 Medtronic case barred state tort claims arising from damage caused by FDA-approved medical devices. (Further complicating matters, in a 1996 device caseinvolving Medtronic and a still different section of the statute, the court found that state tortclaims were not preempted.) Because the applicable federal pre-emption provision for drugs is narrower, the Wyethdecision came out the opposite way (i.e., against the manufacturer). This means that even after FDA approval, drug makers have a duty to monitor their products and update their Changing the landscape for FDA approvals - Mass High Tech Business News http://www.masshightech.com/stories/2009/04/06/daily28-Changing-the-.
ili.ate publications: ACBJ.com, Boston Business Journal, Bizjournals.com, Portfolio.com, Wired.com Finally, there is an unanswered question for device manufacturers: Having obtained FDA approval, what obligations do they have when a defect comes to light after approval?Justice Ginsburg, the sole dissenter in the 2008 Medtronic case, raised that question in herfirst footnote in that case. The question for the future is whether the court will find the statutory device preemption language (whether-or-not subject to a product recall) or apattern of post-FDA-approval harm to be more compelling. And for observers who assumedthat there is a reliable pro-business majority on the Roberts court, the Wyeth decisionsuggests a less certain result than the industry might prefer.
Matt Henshon and Terry Klein practice at the Boston-based boutique of Henshon ParkerLLP. They have no attorney-client relationship with any company named in this article. Comments
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