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First, a minor correction. We lost by 6-3, not 6-2 (when you’re typing fast you’re all thumbs). We lost Kennedy, Thomas, and Breyer. We needed to win at least two of them.
The court relied on two facts established by the trial: (1) that a stronger warning would have made a factual difference (eliminating consideration

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As most of our regular readers no doubt already know, not quite two weeks ago, we had to flip one of the cases in our Drug Preemption Scorecard. Specifically, the pro-preemption decision Tucker v. SmithKline Beecham Corp., 2007 WL 2726259 (S.D. Ind. Sept. 19, 2007) (“Tucker I”), became the anti-preemption decision,

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We promised you that we would be “mining the depths” of Third Circuit’s opinion in Colacicco v. Apotex Inc., 521 F.3d 253, 2008 WL 927848 (3d Cir. Apr. 8, 2008), affirming implied prescription drug preemption. That, of course, assumes that our doing so is a good thing. But we have to believe that most

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The Third Circuit has affirmed the finding of extensive preemption in the Colacicco/McNellis suicidality litigation. Here’s a copy of the opinion. Judge Sloviter wrote the opinion. There is a dissent, by Judge Ambro. This is the first federal court of appeals decision to address preemption following the FDA’s 2006 Preemption Preamble.
The

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Now we’ve read it, and before we go off to celebrate (and maybe to look for new jobs as IP lawyers – that’s a joke, folks), we thought we’d tell our readers why that’s exactly what we’re doing.
The 7-1 Riegel decision definitively demolishes a lot of the arguments we’ve been seeing for years (if

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We’re sure that we’ll have plenty more to say about the Wyeth v. Levine case as it makes its way toward final decision later this term. For one thing, the grant means we should know once and for all whether the FDA’s right about implied preemption in the prescription drug field by the end of

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The Solicitor General, on behalf of the FDA, has recently filed amicus briefs in both the Riegel v. Medtronic and Warner-Lambert v. Kent (formerly Desiano) Supreme Court preemption cases. We’re doing a separate post on Riegel, but we did this one first because it’s more in the nature of “breaking news” – it