In his regular FindLaw.com column, Professor Anthony Sebok writes that Wyeth v. Levine can be read either of two ways: Preemption might exist if a drug company (1) “had submitted to the FDA exactly the warning required by the Vermont jury,” or (2) “had proven that the FDA rejected the reasoning behind the warning required by the Vermont jury.”
Happily, he concludes that “the actual warning test for impossibility is unrealistic.” Thus, Sebok hopes “that the Third Circuit distinguishes Colacicco and Levine on their facts” and that the Third Circuit finds in favor of preemption in Colacicco.
We, of course, hope so, too.
A less analytic, and more newsy, description of Wyeth v. Levine appears at Wisconsin Law Journal.
Hat tip to Point of Law for alerting us to those two items.