Wyeth v Levine, has the pendulum finally started to swing back to center?

In a landmark win for the rights of plaintiffs the US Supreme Court yesterday decided 6-3 to side with Dianna Levine and invalidate the tort reform lobby argument that FDA approval of a drug provided immunity from lawsuits in state courts.

I'll leave the commentary and explanations of the legal impact of the decision to others. The Legal Broadcast Network will be having at least three excellent commentators in the next 24 hours posting expansive broadcasts on Wyeth v Levine.

I'll instead discuss the cultural and business impact this decision is going to have on the settlement and claims arena, as well as the crumbling power and influence of the tort reform lobby in the United States.

First, lets talk about how this will benefit the structured settlement and claims community. The fact is that there are many significant mass tort cases that have stuck in neutral as defense attorneys nationwide awaited the outcome of this case. Lets face it, if you were defense counsel for a drug company and were consulting on Accutane, HRT/Prempro, Duragesic and other mass torts would you have even contemplated settling as long as the Levine case was hanging out there and might have wiped out any liability you might have had? We will now see an acceleration in global settlement talks for a wide range of drug mass torts cases, as well as medical device cases. While the structured settlement industry has an abysmal track record in handling mass tort cases effectively, the end of this log jam caused by Levine being pending in the Supreme Court is finally gone and we can expect to see substantial movement in 2009 on mass tort cases that have been stalled.

Second, the impact of this "pro business court", an argument I never really bought to begin with, going strongly in the direction of states rights and state courts ability to handle cases in their own jurisdiction is a major blow to the tort reform lobby. You have to grasp just how important Levine was to the tort reform crew that is stalled in ramming through more tort reform at the state and local levels and had bet the house on Levine becoming law and killing the plaintiff bar for good. Hundreds of millions of dollars and close to a decade of planning wrapped around this effort, but with the tort reform backers largely struggling with this bad economy as well, I doubt that we will see a significant push for more tort reform in this legislative and economic climate. The fact is tort reform is a nightmare not only for average citizens but for the settlement profession as well as the number of cases filed and settled has dropped every single year for the last four years. You can't settle or structure cases that aren't brought due to artificial tort caps, restrictions and access to the court room due to the perversions of "tort reform."

No, this is a big day and good news for the rights of citizens to bring suits against dangerous drugs, defective products and the companies that develop and market them. The Supreme Court got it right and the net result will be the end of the claims and legal log jam that this case created and an improvement in the climate around plaintiffs rights and access to the courts.

Posted on March 5, 2009 .