Is Wyeth Case Doomed to Deadlock Over Roberts’ Stock Holdings?
For the past year, the legal and medical communities have been holding their collective breath, waiting for the courts to resolve a key legal issue: Can people injured by Food and Drug Administration-approved drugs sue the drug makers in their state courts for damages?
The answer to that question, which is now in the hands of the U.S. Supreme Court, could decide the fate of thousands of personal-injury claims filed across the country. The case, Wyeth v. Levine, involves injuries to a Vermont woman, Diana Levine, who had part of an arm amputated after a Wyeth Pharmaceuticals drug, Phenergen, was improperly administered to her. Levine contends Wyeth failed to properly warn against the risks of delivering Phenergen via an “IV Push” method, but Wyeth contends the drug was safe when used as directed.
If the Supreme Court holds that Wyeth and other drug companies are immune from such state personal-injury suits, Levine and thousands of other people who are injured by FDA-approved drugs would be locked out of court.
But a potential conflict of interest stemming from the financial portfolio of Chief Justice John Roberts could sink the crucial court ruling before it is even issued.
Roberts’ Shares of Pfizer at Issue
As of 2006, Roberts admitted owning between $15,001 and $50,000 worth of shares of Pfizer, one the world’s largest drug companies which has announced it plans to purchase Wyeth Pharmaceuticals. While it is unknown whether the Chief Justice still owns the Pfizer stocks, in the past, Roberts has recused himself from cases that involve Pfizer and other entities in which he has a financial interest.
If Roberts is forced to recuse himself from the vote in the Wyeth case because of his Pfizer shares and no other of the eight remaining justices is also forced to recuse, the court could be left with a 4-4 deadlock. A tie would not be good for Wyeth, since the last court ruling went against the drug company and in favor of Levine. When the Supreme Court deadlocks, the last court ruling becomes the final word on the issue.
The court heard attorney’s arguments in the Wyeth case in November and is expected to issue its much-anticipated ruling any day now.
Roberts Has Cost Drug Companies Before
This would not be the first time Roberts’ stock portfolio has cost the pharmaceutical industry a crucial Supreme Court victory.
In March 2008, a Roberts recusal resulted in a 4-4 deadlock which upheld the rights of 27 Michigan residents to sue drug makers when the plaintiffs show that the manufacturers deliberately defrauded the FDA in earning approvals. Those suits related to injuries linked to Pfizer’s diabetes drug, Rezulin.
The result of that Supreme Court deadlock caused by Roberts’ recusal was an affirmation of the lower court’s ruling allowing the suits to proceed. Roberts could have cast the deciding vote on the issue, but his ownership of Pfizer shares kept him from participating.
Is Wyeth Getting Nervous?
On February 4, 2009, Seth P. Waxman, the attorney of record for Wyeth in the Levine case, wrote a letter to the clerk of the Supreme Court, essentially stating his position that Roberts’ shares of Pfizer should not prevent the chief justice from voting in the pending case.
In the letter, Waxman said the Pfizer-Wyeth merger likely will not be consummated until late 2009 and in no event will be final before July 31, 2009. The attorney also said that Wyeth still has no parent corporation and that no publicly held company owns 10 percent or more of its stock.
The move by Waxman to publicly clarify Wyeth’s current financial standing is rather conspicuous. It is clearly designed to keep Roberts in the fold to possibly deliver a deciding vote in favor of the pharmaceutical industry.
Roberts Should Recuse Himself
Roberts should play it safe and recuse himself from Wyeth v. Levine. The fact that the Pfizer-Wyeth merger will not technically be finalized for several months does nothing to remove the stain of impropriety that would result from Roberts deciding the case.
While the letter of the law may not preclude the Chief Justice from participate in deciding the case, in the court of public opinion, his presence would seem like more evidence of sneaky, back-room dealing in favor of corporate America.
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[...] As a result, Roberts may choose not to take part in the Court’s decision. That could force a four-four tie, allowing the Vermont court ruling to [...]