We’re thinking about it one more time. One of your humble scribes — Herrmann — is slated to be interviewed about the case tomorrow by Brian Sullivan, on Bloomberg TV’s “In Focus.” (We understand the show is broadcast from noon to 2 p.m. Eastern, but we’re not sure whether the interview will be live or taped. Sorry we can’t be of more help than that, but we don’t watch too much daytime TV these days.)
Anyway, that interview will demonstrate two things: First, Herrmann has a face that was made for radio (or blogging — he chose his hobby well). Second, Warner-Lambert v. Kent may have serious implications for the pharmaceutical industry; that’s why Bloomberg TV cares about it.
In addition to our previous ruminations about the case, one more thing struck us when we were flipping through the briefs getting ready for the interview: The Supreme Court really does have to resolve the circuit split between the Second and Sixth Circuits on this issue.
Here’s the current state of play: If you live in Michigan and file a product liability lawsuit against the manufacturer of a prescription drug, your claim is statutorily barred — unless you can prove that the drug manufacturer defrauded the FDA. The Sixth Circuit Court of Appeals (which has jurisdiction over appeals from decisions by Michigan federal courts) has held that the “fraud-on-the-FDA” exception is preempted, so the plaintiff’s claim is barred — period. See Garcia v. Wyeth-Ayerst Labs., 385 F.3d 961 (6th Cir. 2004).
In contrast, the Second Circuit (which has jurisdiction over appeals from decisions by New York federal courts) held that the “fraud-on-the-FDA” exception is not preempted, so Michigan plaintiffs are able to pursue their product liability claims. See Desiano v. Warner-Lambert & Co., 467 F.3d 85 (2006), cert. granted sub. nom Warner-Lambert v. Kent, 2007 WL 1420397 (Sept. 27, 2007).
If a plaintiff brings a product liability claim against a drug company, the law of the plaintiff’s home state typically governs that lawsuit. Thus, if you live in Michigan and think that one of Pfizer’s drugs hurt you, you can sue wherever you want — Michigan (where you live), New York (where Pfizer is headquartered), or in any other court where jurisdiction and venue are proper. But, no matter where you file your lawsuit, Michigan state law will govern your claim: You were prescribed the drug in Michigan; you were warned, if at all, about the drug’s side effects in Michigan; you bought the drug in Michigan; you ingested the drug in Michigan; you were injured, if at all, in Michigan. Choice-of-law rules say that your lawsuit, no matter where it’s filed, will be governed by Michigan law.
If Michigan law governs your claim no matter where it’s filed, why does it matter whether you sue in federal court in your home state of Michigan or in Pfizer’s home state of New York?
Because you’d rather win, that’s why.
If a Michigan plaintiff sues in federal court in Michigan, then the Sixth Circuit decision in Garcia controls: The fraud-on-the-FDA exception is preempted, and the plaintiff’s product liability claim is statutorily barred. Plaintiff loses.
If the same Michigan plaintiff sues in federal court in Pfizer’s home state of New York, then the Second Circuit decision in Desiano governs: The fraud-on-the-FDA exception is not preempted, so the plaintiff is able to pursue the claim. Plaintiff goes to trial and has a chance to win.
What does that mean in the real world? People who live in Michigan will file their product liability lawsuits in federal courts in the drug manufacturers’ home states. If you’re suing Pfizer, you sue in New York and take advantage of Desiano. If you’re suing a drug company headquartered in California, you file your lawsuit in federal court in California. You don’t have Desiano, a Second Circuit case, to protect you, but at least you’re not doomed by Garcia, a Sixth Circuit case. Instead, you can fight the issue anew in the Ninth Circuit Court of Appeals, and learn whether or not your claim survives.
That situation — forum-shopping to take advantage of varying judicial interpretations of the interplay between federal and state law — is not tenable. But, until the Supreme Court speaks, that’s the state of play in America.
Nice job, Supreme Court: Granting cert in Warner-Lambert v. Kent was a good idea.
Now the only question is whether we can explain this stuff tomorrow in a way that mere mortals can understand it. Tune in, and find out.