Preemption Update: Presumption Against Preemption Under Attack by Wyeth

As plaintiffs’ attorneys and defense attorneys representing pharmaceutical manufacturers await the filing of the respondent-plaintiff’s merit brief in Wyeth v. Levine, No. 06-1249 it is useful to take note of one of the salient features of Wyeth’s brief, filed in May 2008.

Wyeth apparently appreciates the elephant in the room: that if the High Court applies the longstanding presumption against preemption, Wyeth faces a decidedly uphill battle to conjure an implied conflict to warrant preemption. And so Wyeth begins its brief by attacking the very applicability of the presumption. To make its point, Wyeth insists, inter alia, that while the presumption against preemption is applicable in “express” and “field” preemption cases, it has no similar applicability in a case where, as in Levine and in almost all prescription-drug, failure-to-warn cases, the only category of preemption urged by the defendant drug company is implied “conflict” preemption.

To be sure, Wyeth overstates its position that the presumption has no place in conflict analysis, which is more of an extrapolation than an accurate statement of Constitutional law. The presumption against preemption has been a core principle of preemption jurisprudence for decades. Most importantly, however, Wyeth’s tortured argument simply defies common sense. If – as Wyeth appears to concede – the presumption has applicability in “express” preemption cases, where Congress has explicitly articulated within a given federal statute that certain state law is preempted, why would that presumption have any less force in a case where Congress’ intent vis-à-vis preemption is entirely absent from the statute? The answer is obvious: it would not. Rather, the presumption against preemption ought properly to be given more force in a case where Congress has been silent on preemption. Wyeth’s concession that the presumption applies in “field” preemption cases, and its attempt to contrast such cases from “conflict” cases, similarly falls flat. Field preemption, like conflict preemption, arises only by implication, and certainly, if the presumption applies in the first place to guide an implied field analysis, it ought likewise to apply to guide an implied conflict analysis.

In short, it cannot be that the Supremacy Clause was intended to serve as a sword for tortfeasors to avoid consequences for their negligent actions under state law without even a whisper from Congress. Wyeth’s argument that the presumption in favor of state sovereignty has no place in preemption analysis – perhaps the drug industry’s boldest argument yet in support of preemption – is another example of Pharma’s overreaching and glossing of the law to achieve the tort reform it so desperately craves. We can only hope that the High Court sees Wyeth’s presumption argument as just that.