The first question we’ll be asked, of course, is whether a decision in Warner-Lambert v. Kent, which involves a Michigan state law, will have broad national implications.
In a word, yes.
The Michigan law involved in Kent essentially bars product liability claims against manufacturers of prescription drugs — unless a manufacturer defrauded the FDA. If the fraud-on-the-FDA exception is preempted, there can be no liability.
But Michigan is not alone.
Under Texas law, the warnings on presccription drugs are presumptively adequate, unless a manufacturer defrauded the FDA. If the fraud-on-the FDA exception is preempted, there can be no failure-to-warn claims.
And six states — Arizona, New Jersey, North Dakota, Ohio, Oregon, and Utah — bar claims for punitive damages, unless a manufacturer defrauded the FDA. If the fraud-on-the-FDA exceptions are preempted, there can be no punitive damages.
We’ve already discussed these statutes in more detail here.
Yes, now that you ask: We’ll be watching this very closely.