Remember Bruesewitz v. Wyeth? That’s the case about the Vaccine Act and express preemption. It made our top ten list last year. Bruesewitz and it’s evil twin, Wyeth v. Ferrari, appeared for a while to be headed for the Supreme Court together – there being a direct conflict between the two. Then the plaintiff in Ferrari got cold feet. Despite having won below, Ferrari was voluntarily dismissed with prejudice to avoid Supreme Court review.
That left Bruesewitz. The Supreme Court listed Bruesewitz for conference way back in early November. Then nothing happened – for a long time. We even commented upon this holding pattern.
Well, today something possessed us to look again at the Supreme Court’s docket for Bruesewitz. There’s finally something to report. The petitioners (plaintiffs) filed a supplemental brief on February 12, 2010. Then on February 17, 2010, Bruesewitz was distributed (for a second time) for consideration at the Court’s March 5, 2010 conference.