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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

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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

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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

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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

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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

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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

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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