Diana Levine, a professional musician, went to the hospital for treatment of a headache. By the time she left the hospital, her headache was gone, but so was one of her arms. The hospital staff had injected her with the drug Phenergan to alleviate her nausea caused by the migraine headache. The drug entered an artery, her arm became
gangrenous, and several weeks later, her hand and lower arm were amputated. The drug's manufacturer knew that directly injecting the drug(as opposed to administering it through an IV drip) carried a risk of injury. The drug's label warned of the dangers associated with direct injection but did not prohibit that method of giving the drug. The label
as written was approved by the federal Food and Drug Administration (FDA) in 1974. The FDA is the federal agency created by Congress responsible for approving all drug labeling. A Vermont jury determined that the drug's manufacturer did not adequately warn against that method of administration in its drug labeling and awarded Ms. Levine $5 million in compensatory damages, and the Vermont Supreme Court affirmed.The drug manufacturer appealed the case to the U.S. Supreme Court arguing that the FDA's authority over drug labeling preempts any state laws regarding product liability. What policy arguments would you advance for arguing that Ms. Levine's state products liability case is not preempted? What policy arguments would you advance for arguing that her case should be preempted by federal law?
Preemption In A Drug Injection
Length: 1 pages (275 Words)
Preemption in a drug injection
Ms.Levine is the plaintiff, in this instance who lost her arms due to a drug; Phenergan, injected into her when she was suffering from her a headache. The drug had entered into her artery which had resulted into these. In this case, Ms.Levines state product liability claim is not preempted due to the following reason. The drug which was meant to be a cure had resulted in damages in the case of the plaintiff losing its intended objective in this place. The product has not been preempted since the manufacturers were aware of the risk arising from the drug and yet continued supplying the product.
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