Thursday, March 6, 2008


Over at Drug and Device Law, Beck and Herrmann have an interesting post about the Supreme Court's recent (non)decision in Warner-Lambert v. Kent.  It begins:

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 Michigan residents sue drug companies in a federal court in the Sixth Circuit (which covers Michigan, Ohio, Kentucky, and Tennessee), the plaintiffs automatically lose -- their claims are statutorily barred. See Garcia v. Wyeth-Ayerst Labs. 385 F.3d 961 (6th Cir. 2004).

But if those same plaintiffs sue those same drug companies in a federal court in the Second Circuit (which covers New York, Connecticut, and Vermont), the plaintiffs do not automatically lose.  Under the Second Circuit's decision in Desiano v. Warner-Lambert (now affirmed by the 4 to 4 tie in the Supreme Court under the name Warner-Lambert v. Kent), the Michigan immunity statute is subject to a fraud-on-the-FDA exception. The plaintiffs have some chance that their cases will go forward. ...



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