MADELEINE BRAND, host:
This is Day to Day from NPR News. I'm Madeleine Brand.
ALEX CHADWICK, host:
I'm Alex Chadwick. In Vermont, Diana Levine - she's a musician, she played guitar and piano - sought treatment for severe migraine headaches. Doctors gave her a shot in the arm, a drug to relieve the symptoms. She had a horrible reaction to it. A few weeks later, they had to amputate her arm. That was eight years ago. On Monday, her lawsuit will be heard in Washington at the U.S. Supreme Court. Vermont Public Radio's John Dillon has the story.
Ms. DIANA LEVINE (Musician; Respondent, Wyeth v. Levine): This is a control room, where we did our first four albums. The first three were picked up by A&M records.
JOHN DILLON: Diana Levine is a songwriter and musician. She and her late husband first gained commercial success with albums geared to children. The first few recordings feature exuberant retakes of some classic oldies.
(Soundbite of song "The Loco-Motion")
Ms. LEVINE: (Singing) Oh, everybody is doing a brand new dance now. Come on, baby, do the Loco-Motion. I know you'll get to like it...
DILLON: The music was recorded in an old farmhouse off a dirt road in Marshfield, Vermont. Levine's studio is decorated with colorful guitars and wild, kitschy, kid-oriented art.
Ms. LEVINE: My whole house is about kids and playfulness, Diana's museum of junk.
(Soundbite of laughter)
DILLON: Levine gestures around the room with a right arm that ends just below the elbow. Here arm was amputated after she was injected with drug Phenergan to relieve the nausea associated with migraine headaches. Phenergan is made by Wyeth Corporation. When it comes into contact with arterial blood, Phenergan triggers an almost instantaneous reaction. The tissue dies and gangrene swiftly sets in. That's what happened to Levine. She went through two operations, as her surgeon tried to stop the gangrene.
Ms. LEVINE: He tried to save my wrist with the first amputation, but you know, it was still in horrible pain. I watched it creep up. And then he came in and just said, it can't be done. I've got to do it again.
DILLON: Diana Levine's medical calamity is now the top business case before the U.S. Supreme Court. The legal odyssey started with a lawsuit filed in Vermont Court. Her lawyers argued that Wyeth was to blame because it knew that the injection method called an IV push was dangerous. A jury came back with a $6 million judgment against Wyeth. The company appealed, and the Vermont Supreme Court upheld the jury verdict. Wyeth then went to the U.S. Supreme Court. Sheryl Hanna teaches constitutional law at Vermont Law School.
Professor CHERYL HANNA (Constitutional Law, Vermont Law School): What happens if Wyeth wins, essentially, is all those people who are injured in some way by a drug or other medical device, they just can't go to state court and sue, claiming that pharmaceutical industry was negligent by failing to warn them of those dangers or by putting a defective product on the market.
DILLON: Wyeth lawyer Bert Rein argues Phenergan has been administered millions of times since it was approved in the 1950s. Only in about 20 cases, he says, did the drug cause serious tissue damage. And he says, Wyeth warns about the risk. Ryan doubts that the court will change the ground rules for consumer lawsuits if Wyeth wins.
Mr. BERT REIN (Counsel to the Petitioner, Wyeth v. Levine): We understand the-sky-is-falling pronouncement because they have a certain political significance, but they're not accurate in terms of the limited facts of this case.
DILLON: But the case has drawn lots of legal fire power. Both sides believe it could have a huge impact on product-liability law. Diana Levine said she wants to win and not just because she was permanent disfigured, lost much of her livelihood and needs the money for medical care.
Mr. LEVINE: I mean, they can't give me my arm back, obviously. But they changed my life unalterably, and it didn't have to happen, because they knew about all the cases ahead of me. And then, beyond that, they should change the label so it doesn't happen to anyone else.
DILLON: Oral arguments are set for Monday. For NPR News, I'm John Dillon in Montpelier, Vermont.
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