Unfortunately, the Third Circuit now seems to have a fetish with the presumption against preemption. Not long after the Supreme Court abolished that presumption in express preemption cases in Puerto Rico v. Franklin-California Tax-Free Trust, 579 U.S. 115 (2016), the Third Circuit refused to go along. See Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 771 n.9 (3d Cir. 2018) (finding Puerto Rico v. Franklin not controlling because it was not a product liability case). Since then, as we discussed here, every other circuit court to address the issue has recognized the demise of the presumption against preemption in express preemption cases – several of them doing so in product liability litigation. The Third Circuit stuck out like a sore thumb.
Then along came Merck Sharp & Dohme Corp. v. Albrecht, 587 U.S. 299 (2019). In our initial “breaking news” post when Albrecht was first decided, we pointed out an interesting fact. Among other things, Albrecht spent several pages restating and reworking the Court’s poorly reasoned Wyeth v. Levine, 555 U.S. 555 (2009), decision. See Albrecht, 587 U.S. at 310-13 (“describing” Levine for four pages). Levine, of course, had been the high water mark of the presumption against preemption, which it called a “cornerstone” of “pre-emption jurisprudence” generally. 555 U.S. at 565. But nowhere in Albrecht’s discussion of Levine – indeed, nowhere in the Albrecht decision anywhere – did the Court even mention any presumption against preemption. (If you don’t believe us, search Albrecht for “presum!”) As we said then, “conspicuously absent from that description is any express reference to any ‘presumption’ (as opposed to the older ‘assumption’) against preemption.” So on that issue, be believe that the Court in Albrecht actually pulled back from that presumption.
Continue Reading Challenging The Role of the Presumption Against Preemption in Fosamax