In November, the U.S. Supreme Court will hear arguments about whether Diane Levine may keep more than $6 million that a Vermont jury ordered Wyeth, a pharmaceutical company, to pay her for failing to warn her adequately about the risks of one of its drugs after she lost part of an arm to amputation. The case, the latest in a brisk parade of similar ones, will help define the contours of a signature project of the Roberts court. In legal jargon, the cases concern “pre-emption,” a doctrine that can bar injured consumers from suing in state court when the products that hurt them had met federal standards. The issue is less boring and more consequential than it sounds, and the Levine's case is shaping up to be the most important business case of the term.
“Federal pre-emption is the fiercest battle in products liability law today,” said Catherine M. Sharkey, a law professor at New York University. “The court clearly recognizes this, as it has agreed to hear so many cases and seems eager to give clarity to what has been, to date, an undisputably muddled area of law.” Business groups, often supported by the Bush administration, have vigorously pursued pre-emption arguments, hoping to build a barrier against many kinds of injury suits. Plaintiffs' lawyers oppose broad pre-emption doctrines, saying they short-circuit valid claims arising from terrible injuries.