On April 7, 2000, Vermont musician Diana Levine went to her local clinic suffering from a severe migraine. At the clinic, she was given Demerol and Phenergan, a nausea drug manufactured by Wyeth Pharmaceuticals. Unfortunately, Ms. Levine was given Phenergan through a procedure known as an IV-push, resulting in the injection of the drug in an artery. As a result of the arterial injection, her arm became infected with gangrene and had to be amputated, putting a devastating end to her career.
Wyeth was aware well before Ms. Levine’s tragedy that there were serious risks associated with administering the drug through IV-push–specifically that it could lead to unintentional arterial injection and eventual gangrene–but did nothing to discourage its use. Wyeth did not warn against the injection method on its label, nor did it inform doctors of the dangers associated with the method.
Outraged by Wyeth’s disregard for patient safety, Ms. Levine, alongside her attorney Richard Rubin, filed suit in Vermont. They argued that the company failed to warn doctors and patients of the dangers it knew accompanied this injection method. For his part, Mr. Rubin, managing partner at Rubin, Kidney, Myer & DeWolfe, proved an exceptional advocate for Ms. Levine, convincing both a jury and a majority of Vermont’s Supreme Court that the company was negligent in its warnings associated with Phenergan.
But Wyeth, emboldened by recent decisions perverting the principle of federal preemption, decided to challenge Diana’s suit in the nation’s highest court. Overnight, her case had morphed into a referendum on the ability of patients throughout the country to hold drug manufacturers accountable for the safety of their products.
Realizing the magnitude of the case, Mr. Rubin turned to an attorney with incomparable credentials in arguing before the Supreme Court. David Frederick, partner at Kellogg, Huber, Hansen, Todd, Evans & Figel, had argued 25 cases in front of the Supreme Court, representing a wide range of clients, from state governments to large corporations, from criminal defendants to Native Americans.
On November 3, 2008, Mr. Frederick argued his twenty-sixth case before the Supreme Court, and on March 4, 2009, he won what was referred to by the Chamber of Commerce as “the biggest case of the century”. Ms. Levine, Mr. Rubin and Mr. Frederick stood toe-to-toe with one of the most powerful corporations in America, and the humble musician from Marshfield, Vermont, came out on top–handing an essential victory to patients everywhere.