When Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (U.S. 2019), was decided, we included it as both our best decision of 2019, and as our sixth worst case. To us, Albrecht’s holding that all preemption issues are questions of law for the judge to decide overcame the
If we were to recap briefly our reactions to the Levine decision and ten years of decisions attempting to apply it, then we might say something like this. The Court’s creation of a clear evidence standard for conflict preemption in the context of warnings claims for branded drugs was both novel and misguided. The Court
An unexpected bit of good news as we go into November. Bexis will be presenting at the Reed Smith annual client CLE program on big-deal pending cases. In preparation, he took a look at the SCOTUSBlog page for Merck Sharp & Dohme Corp. v. Albrecht, No 17-290 (that’s the Supreme Court name for In
We immediately called for the further appeal and reversal of the hideous decision in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017). However, we’re just bloggers. Thus, we were greatly pleased when the United States Supreme Court, on December 8, 2017, requested the views of the Solicitor General
Prescription drug manufacturers are not insurers of injuries sustained while taking their products. Even in the most plaintiff-friendly jurisdictions, there needs to be some fault—whether framed in negligence, strict liability, or something else—and causation between the fault and the injury. It is surely not easy to stomach for someone who sustains such an injury while
Thanks to Terry Henry at Blank Rome for sending along today’s preemption decision in In re Fosamax (Alendronate Sodium) Products Liability Litigation (No. II), No. 12-2250, slip op. (3d Cir. April 30, 2014), affirming the dismissal of so-called “design defect” claims against generic drug manufacturers under the laws of 28 states. Essentially, the Third
Last July we discussed a rare event, a preemption win for an innovator drug under the Wyeth v. Levine, 555 U.S. 555 (2009), “clear evidence” standard. However, that case, In re Fosamax Products Liability Litigation, 951 F. Supp.2d 695 (D.N.J. June 27, 2013), occurred in the peculiar context of a preemption motion granted
Schadenfreude – That probably best describes how we felt when we read Secrest v. Merck, Sharp & Dohme Corp., No. 11-4358, slip op. (2d Cir. Jan. 30, 2013). We’ve seen time and time again how plaintiffs attempt to manipulate treating physician testimony, usually but not always cloaked by biased judicial rulings that prevent one
