Video: Justices to decide right to sue

By Pete Williams Justice correspondent
NBC News
updated 10/5/2008 3:19:00 PM ET 2008-10-05T19:19:00

In their new term beginning Monday, the justices of the U.S. Supreme Court will be asked to decide how much authority state courts should have in granting big damage awards against the makers of prescription drugs and cigarettes.

They also face questions over swear words blurted out on broadcast television, access to city parks for putting up public monuments, and the welfare of whales off the Southern California coast.

Consumer advocates say lawsuits in state court have traditionally helped uncover product hazards, but the business community argues that federal regulations about product safety often trump the one-case-at-a-time decisions of state court juries. And one of the biggest cases of the term, raising that very issue, comes to the Supreme Court with a heartbreaking background.

When Diana Levine, a popular Vermont guitar player, sought treatment for a migraine headache in 2000, she was given a drug called Phenergen, injected into an I-V tube with a syringe, a method called "IV push," to help control nausea.

Amputation followed treatment
But the drug somehow came in contact with an artery, severely damaging her hand and forearm, which had to be amputated a few months later.

"It was horrible, it was just traumatic," she said. "The drug label should have said, do not give by IV push."

A Vermont jury agreed, awarding her $6.7 million.

Key 2008-2009 Supreme Court casesBut the drug maker, Wyeth, contends that only the federal Food and Drug Administration can decide the proper wording for drug labels. Juries, by contrast, consider only the results of individual cases and cannot weigh all a drug's risks and benefits, the company argues.

"What they don't see are the millions of people who benefit from the use of the drug, and you've got to weigh the interests of both those groups of patients," says Bert Rein of Washington, DC, representing Wyeth.

A similar issue is at play in a case brought by smokers in Maine. They ask the Supreme Court to find that they can sue cigarette companies over claims of low tar and nicotine and of "light" cigarettes, even though tobacco companies say federal labeling blocks suits like theirs, too.

The justices will again this term hear a case involving the Ten Commandments. But this time the issue is not whether a government display is an improper state endorsement of religion.

The city of Pleasant Grove, Utah, near Salt Lake, asks the court to rule that just because the city considers the Ten Commandments historic enough to allow into its Pioneer park a monument listing them, donated by the Eagles fraternal organization, the city is not also obligated to admit a monument from a recently organized church called Summum.

Followers of Summum believe that before Moses received the Ten Commandments on Mt. Sinai, he was given stone tablets containing the Seven Aphorisms -- "psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender" -- which the Summum church proposes to list on a monument in Pioneer Park.

The city refused, declaring that the Seven Aphorisms played no role in the history or traditions of Pleasant Grove.

"This idea that a park is a traditional public forum, therefore anybody can put up a monument, I think is just wrong," says Jay Sekulow, a lawyer representing Pleasant Grove.

But a federal appeals court ruled in favor of Summum's followers, deciding that a city can no more pick and choose among monuments donated by private groups than it can discriminate among speakers or leafleters wanting to express themselves in a public park.

Expletives blurted on live programs
The court will also decide whether TV networks can be fined for expletives blurted out during live programs. The networks, including NBC, a parent company of MSNBC, argue that they should not be punished for "fleeting expletives" that performers utter during unscripted programs.

But the Federal Communications Commission counters that it has an obligation to protect children during prime time viewing hours and that it should not be forced to a adopt a "one-free-expletive" rule.

And environmentalists hope the court will block the U.S. Navy from using powerful sonar off the California coast that they say harms whales. The U.S. Justice Department argues that national security should prevent courts from regulating the military's essential training missions.

The next term or two may also produce a retirement. Lawyers who follow the court believe the oldest currently service justice, John Paul Stevens, is likely to step down during the term of the next president.

Though his health is robust, Stevens is 88, and no justice has ever served past age 90.

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