Wednesday, October 8, 2008
In Part II of their look at Wyeth v. Levine, Tony Sebok and guest Benjamin Zipursky turn to the merits of the case: "whether there is a sound argument for preemption." Sebok and Zipursky quickly discard what they consider Wyeth's "more ambitious" preemption arguments such as the argument that Wyeth cannot change its label without FDA approval, as well as reliance on the 2006 Preamble. Turning to the implied preemption arguments, Sebok and Zipursky focus on the "frustration argument, because we suspect the impossibility argument is less likely to cover many cases, and because it is the weaker argument in Levine (if the Court reads plaintiff's complaint as a true failure-to-warn case)." After a concise explanation of the frustration argument, Sebok & Zipursky conclude:
As should be clear by now, we think that although Wyeth should have won as a matter of tort law, Levine has the stronger case on preemption, absent remand or an extremely strong pro-defendant reading of the record. What is most important, however, is what kind of preemption framework the Court chooses to create.
(Review Part I of the series here).