tort claim

A disease cluster scare implodes; a new one is born

by Michael Fumento on February 8, 2010

in Health and Illness, Precaution & Risk

Yesterday I wrote that a scare over a scleroderma cluster in South Boston had been resolved when the state department of health found no links to anything manmade, but rather than the sufferers were simply genetically more inclined to developing the disease.

But now Florida activists have just goaded the Palm Beach County Health Department into declaring a cluster of child cancer cases in the town of Acreage. Residents are alternately angered and terrified, including by none other than uber-activist Erin Brockovich herself, about whose cold-blooded antics I’ve published 15 articles. She came to town to express her concern and outrage, with two law firms in tow handing out contracts labeled “Contingency Fee Agreement & Power of Attorney.”

Implicated have been radioactive well water, pesticides, solvents, jet fuel, and other causes. Everything but coincidence, as health officials obviously believe. Meanwhile, in addition to being terrified over their kids’ health, people in the town have found they can’t move if they want to because their property values have collapsed.

Implicated have been pesticides, solvents, radium, jet fuel, and other causes. Everything but coincidence, as health officials obviously believe.

I found out about this because I received an email today that read in part:

I wrote to you earlier because Erin Brockovich was starting hysteria and pressing the government to call our community a cancer cluster.  Now, with skewed population numbers and a number as small as three, the health officials have deemed us a pediatric cancer cluster.  Now people are calling to condemn this community with 12,000 CHILDREN (not total). People are scared and trying to blame whatever and whoever.

An unofficial poll by a newspaper online website found two-thirds of those voting thought Brocko was only out for personal gain (Oh, such ingrates!), and some comments by townspeople seemed to reflect, shall we say, a certain degree of anger. Here’s one.

The people of the Acreage have alot to lose, cant move, cant refi, cant sell, cant do anything with your property but still pay taxes and your mortgage for how ever many years this takes.

No mortgage company is going to work with anybody out here till this is over how long do you figure it will take? 5 years? 10 years? And while were all sitting on worthless property we will have the added cost of city water to be stuck with..

And while this is going on we all live on dead ground good for nothing…….Show me the proof!!! You can’t there is none!!!!

I dunno. Call me insensitive. But I don’t think doing this to people is right.

Supreme Court Considers Tort Preemption for Medicines

by Greg Conko on November 3, 2008

in Healthcare, Legal, Nanny State, Personal Liberty, Precaution & Risk

Diana Levine suffered from chronic migraine headaches for many years. So, in April 2000, when she went to a local clinic to get treatment, she knew what to expect. She’d received the same treatment several times before: an injection of Demerol for the pain, and an injection of an antihistamine called Phenergan to treat the nausea that accompanies both migraine headaches and Demerol itself. Everything was normal — except for how the drugs were actually administered. The physician’s assistant who gave her the drugs accidentally injected the Phenergan into an artery, instead of a vein, causing tissue death and gangrene. Ms. Levine, a professional musician, eventually had to have her arm amputated.

Levine naturally sued the physician’s assistant, the supervising physician, and the clinic for malpractice. After all, Phenergan’s FDA-approved label specifically warned against injection into an artery, precisely explaining the likely, tragic side-effects. But Levine also sued the pharmaceutical company that manufactures Phenergan, Wyeth, arguing that the warnings were not clear enough. Despite Wyeth’s defense that the drug had been on the market since 1955, FDA had known about the gangrene risk since 1967, and the agency had explicitly approved the warning that was included on the label, a Vermont jury awarded Levine $6.8 million dollars.

Wyeth appealed the jury verdict, arguing that, because it had complied with FDA regulations on both product safety and labeling, and because there was no new information about Phenergan’s risks that would supersede FDA’s judgment about the warning language, FDA regulation should preempt the state tort claim. And FDA agreed. Nevertheless, the Vermont Supreme Court affirmed the verdict, and Wyeth further appealed to the U.S. Supreme Court, which hears oral argument in the case today.
[click to continue…]