As the whole drug and device world knows by now, Warner-Lambert v. Kent played to a 4 to 4 tie on Monday.

The Supreme Court decision thus “lacks a precedential effect,”Plaut v. Spendthrift Farm, 514 U.S. 211, 215 n.1 (1995), and the case law remains where it was two weeks ago.

Thus, if

1. A 4-4 split by the Supreme Court is of no precedential value. It doesn’t bind any lower court to any position. Here, this means that the circuit split between the Second Circuit and Sixth Circuits remains. That means that immunity statutes are not subject to fraud-on-the-FDA exceptions in Ohio, Michigan, Tennessee, and Kentucky (the

People who try to predict the results of Supreme Court cases invariably make complete and utter fools of themselves.

We’re just the guys for the job!

Although our crystal ball is cloudy, we’re calling Warner-Lambert v. Kent five to three for the good guys. (Coming from our mouths, the “good guys” is the drug industry,

This guest post was prepared by Ted Frank, who blogs regularly at Point of Law, and who attended the oral argument this morning in Warner-Lambert v. Kent. This report is also being posted at that site. Needless to say, this report represents only Ted’s work. We thank him for providing this news from

Warner-Lambert v. Kent, the fraud-on-the-FDA preemption case, has been set for argument in the Supreme Court on Monday, February 25, 2008.

Here’s a link to the Supreme Court’s February calendar.

There’s never been a more interesting time to be a drug and device defense lawyer; this field is hopping. The Supreme Court has granted certiorari in two preemption cases, and a third, even bigger, issue is in the pipeline. This is the Supreme Court’s preemption trilogy, in chronological order:

Riegel v. Medtronic

On Tuesday, December

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