Yesterday, the Supreme Court granted cert. in Williamson v.. Mazda, No. 1314, a preemption case involving the 1966 Federal Motor Vehicle Safety Act. This was the case where Elena Kagan, as SG signed a blistering anti-preemption amicus brief at the petition stage, asking that the Court grant the writ, limited to the first question (“Whether the [Act] or [FMVSS] 208 preempts a state common-law tort claim that an automobile manufactured in 1993 was defectively designed because it lacked a Type 2 (lap/shoulder) seatbelt in one of its seating positions?”). That’s precisely what the Court did. Williamson will decide the continuing reach of Geier v. American Honda Motor Co., 529 U.S. 861 (2000), a 5-4 case concerning preemption of “no-airbag” claims, and more generally implied preemption, in the wake of the Levine case.
The Court also invited the SG to “express the view of the United States” in the Mensing case (Supreme Court Nos. 09-993, 09-1039. That means that the Court has at least some interest in the preemption issues presented by generic drug manufacturers. Our preemption scorecard briefly summarizes the prior result in Mensing:
Mensing v. Wyeth, Inc., 588 F.3d 603 (8th Cir. Nov. 27, 2009), finding no preemption of warning claims in case involving generic metoclopramide. Regardless of CBE requirements the common law could impose a duty upon generic drug manufacturers to alert the FDA and to seek a stronger warning for both generic and brand name labeling or to have the agency issue a “Dear Doctor” letter, in light of evolving knowledge. Nothing in Hatch-Waxman evinces a congressional intent to preempt state law.