September 26, 2007
Another Development in the Preemption Wars
The Supreme Court granted cert in Warner-Lambert v. Kent, No. 06-1498. The question presented is whether the Food, Drug and Cosmetic Act preempt product liability claims under Michigan law against drug manufacturers that allegedly defrauded the Food and Drug Administration. The case is about Rezulin, the diabetes drug. Point of Law predicts that this will have implications for other pharmaceutical litigation and that the Supreme Court will reverse the Second Circuit. I think this is more likely to have implications for the Light Cigarette Litigation. As I pointed out in an earlier post on the topic, the result will be based on theories of statutory interpretation and federalism principles. This case may give Scalia the opportunity he lost in Cipollone; we shall see.
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