The other day we learned that the U.S. Supreme Court will decide Vaccine Act preemption in Bruesewitz v. Wyeth.  We’ll have plenty of time to obsess about the Bruesewitz case itself in the coming months, so today we’ll just use it as a convenient excuse to get a couple of things out of the way.

Good-Bye Colacicco

Remember Colacicco v. Apotex?  At one point it was all the rage – indeed the surge in interest about the original 2006 district court opinion, Colacicco v. Apotex, Inc., 432 F. Supp.2d 514 (E.D. Pa. 2006), in which Bexis was involved as local counsel, was one factor that motivated creation of this blog.  For a while we thought that Colacicco would be the case the Supreme Court would take to decide prescription drug preemption.  But for a bunch of reasons, not the least of which was consolidation with another case, the wheels of appellate practice ground exceedingly slowly in Colacicco, and it got overtaken by Wyeth v. Levine.  The rest, as they say, was history.

We still thought that we might at least get another crack at preemption post-Levine back in the district court in Colacicco.  The plaintiff in the case did too, and didn’t like that prospect one bit. So really late in the game, he tried to be slick, sever some claims, and get out of Dodge (or at least Judge Baylson’s courtroom).  No such luck.  See Colacicco v. Apotex, Inc., 2009 WL 4729883 (E.D. Pa. Dec. 10, 2009) (denying transfer).


Continue Reading First Random Thoughts About The Vaccine Act

The last time we looked at the long-running Colacicco saga, the Third Circuit had vacated its 2007 decision and remanded the preemption issue back to the district courts. As to the Colacicco half, Judge Baylson has issued an order detailing how reconsideration of the preemption issue (and other issues) is to proceed. The court envisions

That headline is correct, except for the exclamation point.

The Third Circuit just issued its decision in Colacicco v. Apotex, on remand from the Supreme Court for reconsideration in light of Wyeth v. Levine.

The Third Circuit decided not to issue a new decision immediately, but instead remanded the cases to the two relevant trial

The Solicitor General just submitted a letter to the Third Circuit in Colacicco v. Apotex giving the government’s position on the preemption question in light of the Supreme Court’s decision in Wyeth v. Levine.

The SG says that the FDA “has not yet conducted the sort of reexamination of various preemption issues following the Supreme

The Third Circuit entered this order today in Colacicco v. Apotex:

“The foregoing motion by Appellee Beth Ann McNellis and unopposed request by Appellant Colacicco for a 15-day extension of time to file memoranda until April 16, 2009 is granted. Opposing counsel may file their responses on or before April 30, 2009.”

The plaintiffs-side briefs

Entry on Third Circuit’s docket, dated 3/18:

CLERK’S LETTER to counsel written at the direction of the Court. You are undoubtedly aware that the United States Supreme Court has remanded the above matter to this Court for further consideration in light of its opinion in Wyeth v. Levine, 555U.S.___(2009). The Court requests counsel to file

Last month, the web was ablaze with speculation about whether Chief Justice Roberts would recuse himself from Wyeth v. Levine, because the Chief owns stock in Pfizer, and Pfizer had announced its intention to acquire Wyeth. Coverage of that issue appeared here, here, and here, among other places.

Here’s what the Chief

The Supreme Court has apparently been holding the cert petition in the SSRI antidepressant-suicide case of Colacicco v. Apotex until the Court decided Wyeth v. Levine.

The Supreme Court’s docket now shows that the cert petition in Colacicco will be decided at this coming Friday’s conference. Industry would naturally like to see cert denied in

Today’s Order List is up at the Supreme Court. Here’s a link.

The Court denied certiorari in Albertson’s v . Kanter, the “farm-raised salmon” case about which we previously posted here and here.

And the Court took no action in Colacicco v. Apotex (the SSRI preemption case about which we previously posted