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As readers of this blog know, we’re keenly interested in Warner-Lambert v. Kent, the “fraud-on-the-FDA preemption” case in which the Supreme Court granted certiorari last week.
We noted the grant of cert (and provided the cert petition, opposition brief, and reply) here, discussed the broader implications of the case here, and did a more thunderous analysis here.
In this post, we’re searching the web and collecting links to what others have said about this case and its likely implications.
Point Of Law thinks Kent is a no-brainer: The Supreme Court took Kent to tell the Second Circuit that the unanimous decision in Buckman barring fraud-on-the-FDA claims meant what it said.
The Mass Tort Litigation Blog predicts that Kent will give Justice Scalia the chance to overrule Cipollone. (That post is a little cryptic for our taste, and we haven’t gone back to re-read Cipollone. But, if the suggestion is that the Supreme Court will reject preemption in Kent — thus reading narrowly (as in “into oblivion”) the 9-0 decision in Buckman — then we beg to differ.)
SCOTUS Blog describes the background of Kent and the arguments for and against granting certiorari, but adds nothing more to the mix. The FDA Law Blog does essentially the same, as does an Associated Press report that shows up on, among other places.
The Fortune Legal Pad nicely describes the three most likely possible results in Kent and notes the implications of the case for the Vioxx Litigation. We agree with what’s written there (which is not too surprising, since the post quotes us and links to this blog), but, given what we do for a living, we wouldn’t limit our thinking to Vioxx. Although Vioxx is stealing the headlines as the pharmaceutical mass tort du jour, there are lawsuits involving an awful lot of other drugs, too. And, if a “fraud-on-the-FDA” exception allows those claims to proceed, then plaintiffs’ counsel will plead fraud on the FDA in every case, as surely as night follows day. So don’t think only about Vioxx. Think about every drug in the medicine chest — from Accutane to Zyprexa — as being effected by the outcome of this case.
There’s the usual rant against preemption in Tort Deform. (Hey, we don’t blame ’em for their point of view. We regularly rant in favor of preemption; fair is fair.) And there’s a noteworthy post at Pharmalot, where Ed Silverman interviews Hank Greenspan, a social ethics lecturer at The University of Michigan Medical Center, who’s been leading the charge against preemption in Michigan.
As far as we can tell, that’s all of the non-redundant stuff about Kent in the blogosphere to date.
If you see anything else of interest, please let us know. In return, we’ll do the same for you.