Court Defies Pro-Business Label

Diana Levine gets a hug at her home in Marshfield, Vt., after learning that the Supreme Court upheld a $6.7 million award to the musician who lost her arm.
Diana Levine gets a hug at her home in Marshfield, Vt., after learning that the Supreme Court upheld a $6.7 million award to the musician who lost her arm. (By Toby Talbot -- Associated Press)
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By Robert Barnes
Washington Post Staff Writer
Sunday, March 8, 2009

After the Supreme Court completed its first full term with both of President George W. Bush's appointees in place, business groups and those who represent them could hardly come up with the accolades to describe the new court.

One prominent practitioner said that if former Chief Justice William H. Rehnquist's court had created a good forum for business, the one headed by his protege and successor John G. Roberts Jr. would be even better.

Robin S. Conrad, executive vice president of the legal arm of the U.S. Chamber of Commerce, said the term that ended in June 2007 was "our best Supreme Court term ever," with the business lobby prevailing in 13 of the 15 cases in which it took a position.

But since then, a more nuanced portrait of the court has emerged. And after last week's decision flatly turning down the position of pharmaceutical companies that they were insulated from state lawsuits filed by injured patients, something of a reevaluation of the court is underway.

"I think the early view that the Roberts court was 'pro-business' was premature," said Jonathon Adler, head of the business law center at Case Western Reserve University law school. "People have been too quick to try to characterize this court one way or the other."

Its decisions can often seem contradictory. Last term, it ruled overwhelmingly in Riegel v. Medtronic that makers of medical devices approved by the Food and Drug Administration were protected from state lawsuits. But last week, in Wyeth v. Levine, the majority said the FDA's role in labeling drugs does not protect drug companies from suits alleging they should have done more in warning of dangerous side effects.

To Roy T. Englert Jr., who frequently represents business clients before the court, that is an indication that the court "calls them as they see 'em."

"The court that decided Riegel by an 8 to 1 vote in favor of manufacturers is the same court that voted 6 to 3 in Wyeth against the manufacturers," he said.

Georgetown University law professor David C. Vladeck, who filed a brief supporting Diana Levine, a musician from Vermont who lost an arm to gangrene because of the botched injection of a drug Wyeth produced, agrees with Englert to a point.

"I bet a fair amount of beer that we were going to win the case," he said, though he acknowledges that the two decisions "seem to point in opposite directions."

But medical devices and drugs are regulated under different statutes. In the former, Congress was specific that states may not impose "any requirement" beyond what the federal agency required. But on the labeling of drugs, the "preemption" of state lawsuits was a relatively new position adopted by the Bush administration.

Justice John Paul Stevens wrote that it did not reflect Congress' will and was at odds with decades of FDA practice that recognized the power of lawsuits to ensure the safety of drugs.

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