We’ve always thought that the FDA’s close regulation of SSRI’s (selective serotonin reuptake inhibitors) and the issue of suicide was among the best fact patterns for preemption. So did the FDA – it entered the preemption field to preserve its control over the labeling of these drugs.
If our side can’t win the preemption fight after
Something old: Last week, a federal judge in New York declared a mistrial after a jury deadlocked over whether Merck’s drug Fosamax was responsible for causing a 71-year-old woman’s osteonecrosis of the jaw. Here’s a link to a Bloomberg report, although that result was widely covered in both the popular and legal press.
Something
A while ago we reported on what we saw as a violation of Erie v. Tompkins principles in Rimbert v. Eli Lilly, where a federal district court, ignoring three state intermediate court cases, predicted that New Mexico would expand tort liability by not following the learned intermediary rule.
Well, that judge recused himself for unstated
This guest post was written by David Booth Alden of Jones Day. We thank Dave for the contribution and remind you to credit (or blame) him, not us, for what follows:
Product liability plaintiffs generally prefer to try cases in which the evidence relates only to parties that are in court and from whom
Defense counsel considering whether they still have good preemption arguments in drug product liability matters after Levine would do well to review preemption briefs recently filed by defendants in major product liability litigation. The litigation involves two fact patterns that we have previously mentioned as candidates for preemption even after Levine. FDA regulatory activity
The Seventh Circuit just released its published opinion affirming the judgment entered on a defense verdict in an SSRI-suicide case. Giles v. Wyeth, No. 07-3149, slip op. (7th Cir. Feb. 12, 2009) (link here). Since Herrmann both tried the case and argued the appeal, we’ll be circumspect with what we say here.
Jeff
Since Herrmann argued this case, and Bexis contributed an amicus brief, we’re going to be quite guarded in what we write here. But please remember the existence of Ackermann v. Wyeth, 526 F.3d 203 (5th Cir. 2008), the next time you’re briefing whether a so-called “heeding presumption” applies in cases involving the learned intermediary
The Legal Intelligencer has a story today about the preemption loss in Knipe v. SmithKline Beecham. Since that adverse decision has made its way into the legal version of “mainstream media,” that means, under our self-imposed guideline of “first, do no harm” to the defense position in such matters, we’re now free to blog
Moments ago, the Fifth Circuit handed down its decision in Ackermann v. Wyeth, No. 06-41774, slip op. (5th Cir. Apr. 24, 2008).
This was an appeal from a grant of summary judgment (based on the learned intermediary doctrine) in an antidepressant-suicide case.
Wyeth sought affirmance on the ground of the learned intermediary doctrine, but also
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