Mass Tort Litigation Blog

Supreme Court Decides Wyeth v. Levine

I haven't had a chance to read the opinion yet, but wanted to broadcast the news as soon as possible.  The Supreme Court has decided Wyeth v. Levine and in a 6-3 opinion, rejected Wyeth's preemption claim.  The Associated Press report is available here through the New York Times.

ECB

ABA Section of Litigation Annual Conference

The ABA's Section of Litigation will have its Annual Conference on April 29 to May 1, 2009 at the Atlanta Marriott Marquis in Atlanta, Georgia.  Program topics include Causation and Injury in Toxic Torts -- An Examination of Modern Causation Principles in Toxic Tort Litigation; Enemy of the State -- The Challanges of Civil Litigation with States and Municipalities; and Preemption in Product Liability Litigation.

BGS

Eric Lasker on Wyeth v. Levine Oral Argument

Eric Lasker (Spriggs & Hollingsworth) has published Oral Argument in Wyeth v. Levine Marks Change in Drug Litigation Preemption Debate in the February 2009 issue of Engage.

BGS

Roderick Hills and Catherine Sharkey on Preemption

The Fall 2008 NYU Law School magazine includes A Presumption Against Preemption, by Professor Roderick Hills (NYU), and A Model for Products Liability Preemption, by Professor Catherine Sharkey (NYU).  (Scroll down the .pdf link to page 60 for the Hills piece, and page 63 for the Sharkey piece.)

BGS

Should Chief Justice Roberts Excuse Himself from Wyeth?

Tony Mauro, from the Legal Times, points out that Chief Justice John Roberts owns Pfizer stock and questions whether Roberts should recuse himself from the Wyeth case now that Pfizer is acquiring Wyeth.  Here's an excerpt:

Chief Justice John Roberts Jr. owns Pfizer stock that has prompted his recusal in previous cases. The outcome of the Levine case is likely to affect Wyeth's value, and in turn Pfizer's.

On Feb. 4, Wyeth's lawyer before the Court, Seth Waxman of Wilmer Cutler Pickering Hale and Dorr sent a letter to the clerk of the Supreme Court informing the Court of the pending transaction. But Waxman told the Court that because of pending stockholder approvals and other matters, the transaction will not be completed until July 31 at the earliest -- weeks after the end of the Court term, by which time its decision would have been released. As a result, Waxman said he does not believe the pending takeover "warrants amendment of the corporate disclosure statement" submitted by Wyeth when Wyeth petitioned the Court last year. That disclosure statement is ordinarily the way justices are informed about parent companies and subidiaries that lets them know if recusal is required.

ECB

Richard Epstein and Rick Hills Debate When FDA Regulation Should Preempt State Tort Liability

Professor John McGinnis (Northwestern) is moderator for a January 9, 2009 Federalist Society debate between Professors Richard Epstein (Chicago) and Rick Hills (NYU) on When Should FDA Regulation Preempt State Tort Liability.  I attended, enjoyed the debate, and asked a question, which is toward the end of the audio/video.

BGS

Will Pfizer's Purchase of Wyeth Affect SCOTUS' Preemption Ruling This Term?

According to Richard Arsenault - a plaintiff's-side lawyer specializing in complex litigation, pharma and mass torts - Wyeth has filed a letter alerting the Court to the fact that Pfizer is taking over Wyeth.  See HME's post on the takeover here. What effect could this have on the opinion in Wyeth v. Levine?  If Chief Justice Roberts recuses himself (as he has in the past in cases involving Pfizer) then this will change the dynamic of the decision; Arsenault predicts it may lead to another 4-4 split.  Then again, since arguments were heard before Pfizer was publicly in the picture, the Chief Justice may not recuse himself.  Any predictions?

ADL

Erin Glenn Busby on Wyeth v. Levine

In a Federalist Society SCOTUScast, appellate lawyer Erin Glenn Busby discusses Wyeth v. Levine, the pending Supreme Court case involving whether state tort lawsuits are preempted by FDA approval of prescription-drug labeling.

BGS