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We’re heard through the grapevine that vaccine preemption is taking a tortuous path in the U.S. Supreme Court — but a path that makes a grant of cert likely.
In the first of the two cases in which a party recently petitioned for cert in a vaccine preemption case, American Home Products Corp, dba Wyeth v. Ferrari, plaintiffs have apparently taken a voluntary nonsuit and suggested to the Supreme Court that this moots Wyeth’s pending cert petition. (We don’t see any indication of that activity on the Supreme Court’s docket for the case, but we have no reason to doubt the reliability of what we’ve heard.)
In the second vaccine preemption case, Bruesewitz v. Wyeth, we’re told that Wyeth responded to plaintiff’s cert petition by agreeing that vaccine preemption raises a conflict in the circuits and that the cert petition raises a question of national importance. Thus, we’re told, Wyeth agreed with plaintiffs that the Supreme Court should grant cert. (Again, we see no evidence of this activity on the Supreme Court’s docket for that case.) If our information is correct, then the parties’ agreement that cert should be granted dramatically raises the odds that the Supreme Court will take the case. We’re told that the Supreme Court will consider the petition in Bruesewitz at its November 6 conference.
We’ll continue to watch the Supreme Court docket in these cases to . . . uh, see when the Supreme Court catches up with our coverage of these issues.