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.
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).