Wednesday, April 27, 2011

Outcome in Sorrell v. IMS Health Fairly Clear After SCOTUS Oral Argument

This is an update to our previous posting at LawPundit on the Sorrell case in which we now look at this case in "standard" fashion.

Lyle Denniston at SCOTUS Blog had a bit of a field day in commenting on yesterday's oral argument (see the full transcript) in Sorrell v. IMS Health as Thomas C. Goldstein, who argued for IMS Health (representing the interests of data-mining companies and the drug manufacturers), hails from Goldstein, Howe & Russell, P.C., who sponsor the SCOTUS blog.

Goldstein had a banner day as opposed to the opposing counsel for Sorrell, Assistant State Attorney General Bridget C. Asay of Montpelier and her counsel in arms, U.S. Deputy Solicitor General Edwin S. Kneedler, who were pummeled by corporate free speech questioning by the Supreme Court Justices. As Denniston writes about the "swing" Justice in the middle of the SCOTUS left-wing and right-wing factions:
"The state is “regulating speech,” Kennedy said bluntly." 
We fully expect this case to go in favor of the drug companies because the law as written can not be supported. Obviously, a State can not pass a law prohibiting drug companies from data mining prescriber information that is open to others. Nor can a State limit free speech in order to "insure" more prescription of generics. The Vermont position here is simply not defensible.

We remain uncertain about what the Justices will say on the privacy issues and on who can disclose or sell information which is gathered, recorded and maintained to fulfill legal requirements, especially personal medical data. We personally think such data should not to be open to ANYONE, without consent from ALL concerned.

A patient who is going to a pharmacy to have a prescription filled in almost all cases is doing that in the full expectation that filling prescriptions is a "private" transaction rather than an open "data transaction" that can in some form later be sold to the highest bidder.

The prescribing physician is not intentionally issuing prescriptions as the first step in a giant marketing scheme, but rather to treat a medically diagnosed condition.

In any case, the legal issue before the Court is not invasion of privacy but rather the Constitutionality of the Vermont statute, which is clearly unconstitutional.

Obviously, pharmaceutical companies should have a corporate free speech right to obtain prescriber data that does not invade privacy and which can rightly be disclosed and sold by pharmacies.

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