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This is another “better here than in a heap on my floor” posts. This post provides links to all court decisions (of which we’re aware) on the issue of drug preemption that have been handed down since the FDA published the so-called “Preemption Preamble” in January 2006.
As readers of this blog surely know, in January the FDA included certain statements about preemption in the preamble to its rule on the content and format for prescription drug labeling. See Department of Health and Human Services, Food and Drug Administration, Requirements on Content and Format of Labeling for Human Prescription Drug and Biological Products, 71 Fed. Reg. 3922 (2006).
We have collected below the opinions that courts have handed down in drug preemption cases since the publication of the preemption preamble. Please note that a parenthetical description of a case as “finding no preemption” in the context of one drug does not mean that the decision would necessarily be an adverse preemption precedent in the context of a different drug. Several of these decisions find no preemption for the particular drug involved in the case, but note that the court might find preemption for a drug that had a different regulatory history. Here are the cases, from January 2006 to date:
1. McNellis v. Pfizer, Inc., No. 05-1286, 2005 U.S. Dist. LEXIS 37505 (D.N.J. Dec. 29, 2005); motion to vacate denied, cert. for app. granted, 2006 U.S. Dist. LEXIS 70844 (D.N.J. Sept. 29, 2006) (finding no preemption in a Zoloft/suicide case; certifying interlocutory appeal).
2. Abramowitz v. Cephalon, Inc., No. BER-l-617-04, 2006 WL 560639 (N.J. Super. Ct. Bergen Cty. Mar. 3, 2006) (finding preemption in an Actiq/tooth decay case). We’re sorry that we can’t provide a link for this decision, but we have only a Westlaw copy of the opinion, and we’re not sure whether copyright law permits us to post a Westlaw copy of a decision.
3. Laisure-Radke v. Par Pharm., Inc., No. C03-365RSM, 2006 WL 901657 (W.D. Wash. Mar. 29, 2006), reconsid. denied (May 3, 2006) (finding no preemption in a generic Prozac/suicide case).
4. Colacicco v. Apotex, Inc., 432 F. Supp. 2d 514 (E.D. Pa. 2006) (finding preemption in a generic Paxil/suicide case).
5. Jackson v. Pfizer, Inc., 432 F. Supp. 2d 964 (D. Neb. 2006) (finding no preemption in a Zoloft and Effexor/suicide case).
6. In re Bextra and Celebrex Mktg. Sales Practices & Prod. Liab. Litig., No. 05-1699 CRB, 2006 WL 2374742 (N.D. Cal. Aug. 16, 2006) (finding preemption of failure-to-warn, but not false advertising, claims in the Celebrex/cardiovascular risk MDL).
7. Ackermann v. Wyeth Pharmaceuticals, No. 05-84, slip op. (E.D. Tex. Sept. 6, 2006) (finding preemption of failure to warn claims in Effexor/suicide case), opinion withdrawn as moot in light of order granting complete summary judgment on other grounds (E.D. Tex. Dec. 20, 2006).
8. Conte v. Wyeth, Inc., No. CGC-04-437382, slip op. (Super. Ct. S.F. Cty., Cal. Sept. 14, 2006) (finding preemption in a Metoclopramide/gastroesophageal reflux disease case).
9. Perry v. Novartis Pharms. Corp., No. 05-5350, 2006 U.S. Dist. LEXIS 75319 (E.D. Pa. Oct. 16, 2006) (finding no preemption in an Elidel/lymphoma case).
10. Levine v. Wyeth, No. 2004-384, 2006 Vt. LEXIS 306 (Vt. Oct. 27, 2006) (finding no preemption in a Phenergan/IV push case).
11. Weiss v. Fujisawa Pharmaceutical Co., No. 5:05-527-JMH, slip op. (E.D. Ky. Nov. 28, 2006) (finding no preemption in an Elidel/lymphoma case).
We hope that your office floor can now be a little cleaner, too.