But in some business cases, Thomas has split from his conservative colleagues.
The case decided last week, Wyeth vs. Levine, involved the recurring conflict between federal regulations and state liability law. Business groups -- and the Bush administration -- maintained that federal regulation of products should "preempt" or trump state laws.
Diana Levine won a $6.7-million Vermont jury verdict after part of her arm was amputated. She said drug maker Wyeth failed to fully warn the public about the danger of injecting the anti-nausea drug Phenergan. If it mixes with arterial blood, it can cause gangrene and lead to amputation.
The warning label said "extreme care" should be taken when injecting the drug. It did not warn against giving it by injection.
Wyeth appealed the verdict, arguing that jurors should not be permitted to "second-guess" the federal regulators who approved the drug and its warning label.
Roberts, Scalia and Alito agreed with Wyeth. Even if the Food and Drug Administration's decision was wrong, it should prevail, they said.
"After today's ruling, however, parochialism may prevail," Alito wrote for the dissenters.
The court's majority, led by Justice John Paul Stevens, said Congress did not intend to take away the right of injured patients to sue drug makers. Levine's jury verdict was affirmed.
Thomas went further and said the court should lay down a marker.
"I have become 'increasing[ly] reluctan[t] to expand federal statutes beyond their terms through doctrines of implied preemption,' " he wrote, quoting himself in an earlier Supreme Court case.
Unless Congress spells it out in the text of the law, Thomas said, the consumer's right to sue under state law should be protected.
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david.savage@latimes.com
