Articles Posted in Preemption

On March 9, 2009, the United States Supreme Court granted petitions for writs of certiorari in two cases that were pending from the Third Circuit Court of Appeals: Colacicco v. Apotex, et al., 08-437, and Pa. Employees Benefit Trust Fund v. Zeneca, 07-822. The High Court ordered further review in each case in light of its decision last week in Wyeth v. Levine.
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We would like to extend a special thank you to our friends at the American Association of Justice (formerly, the Association of Trial Lawyers of America), which yesterday published a comprehensive and thoroughly illuminating report examining the Bush Administration’s preemption agenda during the last eight years. This is an excellent piece of work, and a must read for every plaintiff’s lawyer. We won’t belabor this blog spot with commentary (and there’s not much we could add anyway), but instead let you get right to reading it … AAJ Preemption Report.

In yet another resounding victory for Plaintiffs in the battle against federal preemption, a federal district judge has rejected a drug manufacturer’s attempt to skirt liability by invoking the doctrine of implied conflict preemption. On August 29, 2008, in a 53-page memorandum opinion in Knipe v. SmithKline Beecham, d/b/a GlaxoSmithKline, 2:06-cv-03024 (RB) (E.D. Pa.), Senior Judge Ronald Buckwalter denied GlaxoSmithKlines’ (GSK’s) summary judgment motion based on preemption.
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On July 24, 2008, the Eastern District Court of Missouri rejected yet another drug manufacturer’s attempt to jettison lawsuits based on preemption. In In re: Celexa and Lexapro Prod. Liab. Litig., 4:06-md-01736 (RWS), a Multidistrict Litigation with approximately 42 cases alleging suicidal injuries caused by either Celexa or Lexapro, the defendants, Forest Laboratories, Inc. and Forest Pharmaceuticals, Inc. moved to dismiss 22 of the cases on conflict preemption grounds. The cases in question all involved plaintiffs or decedents who were over the age of 24 at the time of their suicidal event or their suicide.
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No doubt the Plaintiff’s attorneys in Tucker v. SmithKline Beecham, d/b/a GlaxoSmithKline, 04-cv-01748 (DFH/WTL), S.D. Ind. (Indianapolis Division) are breathing a huge sigh of relief. On July 18, 2008, Chief Judge David Hamilton reopened the case by granting the Plaintiff’s motion for reconsideration, effectively reversing the court’s prior grant of summary judgment on preemption grounds. Perhaps even more remarkable than the 180-degree-turn of events is the depth of this particular jurist’s understanding of the preemption issue in the context of SSRI litigation – specifically, in the context of Paxil suicide cases – and the utter frankness of the opinion. Tucker v. GSK, Slip opinion (S.D. Ind. July 18, 2008) At last, someone gets it.
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