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Wyeth: Plaintiffs Rejoice, Defense Lawyers Sulk

Yesterday's Supreme Court decision in Wyeth v. Levine is a "sea shift," Philadelphia plaintiffs' lawyer Sol Weiss tells National Law Journal reporter Marcia Coyle. "Pre-emption as a defense is going to be much more difficult without express written language in the congressional act." His analysis reflects that of many legal bloggers who have commented on the case. From now on, preemption will be more difficult to use successfully as a defense, but by no means impossible. Here is a roundup of what some legal bloggers are saying about the ruling:

Drug and Device Law: "Levine doesn't make preemption impossible, just a lot more difficult. After Levine it's pretty clear though that implied preemption is going to depend quite a bit on what the FDA has to say about specific drug risks, and not very much on what the FDA has to say about preemption."

Legal Times: "Wednesday’s decisive Supreme Court ruling against Wyeth in a landmark pharmaceutical product liability case may also close off a major front in a hard-fought battle by businesses and the Bush administration to insulate national corporations from state tort litigation."

Massachusetts Injury Lawyer Blog: "The Wyeth decision will make it much harder for drug manufacturers to hide behind a shield of compliance with federal regulations. FDA approval will not provide immunity for a drug company with a defective product."

SCOTUSblog: "Amid much critical commentary about the way federal drug regulators are doing their job, a Supreme Court majority on Wednesday provided a ringing endorsement of lawsuits in state courts to fill in for lapses at the national level — in particular, lawsuits that claim drugmakers have not given doctors and patients enough warning about side-effects."

The Am Law Litigation Daily: "The Court has effectively knocked the preemption defense out of drug companies' reach. The majority opinion clearly states that Wyeth must comply with both state and federal law in labeling its drugs and that the language on preemption introduced by the FDA in 2006 'does not merit deference.'"

The Volokh Conspiracy: "I don't think Wyeth and Altria signal a dramatic shift in the Court's jurisprudence, but I do believe these decisions are evidence that early proclamations that the Roberts Court is a 'pro-business' court were premature."

The New York Medical Malpractice Law Blog: "The true impact of this case is, of course, that similarly situated victims of inadequate drug warnings will now be able to initiate actions against the drug maker in state court. They are not pre-empted from suing simply because a drug’s labeling has been approved by the FDA."

Decisionism: "Justice Thomas did something not enough judges do. He supported a legal result that (probably) contradicts the public policy result that he would (probably) prefer and voted with the majority."

Overlawyered: "I worried that the Supreme Court might decide the case on such narrow grounds that it would do little good to confront the problem of trial-lawyer abuse. I now see I wasn’t nearly pessimistic enough. We can put the nail in the coffin in the idea that this is a pro-business Supreme Court."

There is lots of additional commentary about the ruling. At The BLT, Tony Mauro rounds up some of the comments he received yesterday. Drug and Device Law provides pointers to some of the press coverage.

Posted by Robert J. Ambrogi on March 5, 2009 at 01:05 PM | Permalink | Comments (0)


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