Preemption Update: Wyeth v. Levine

On August 7, 2008, Respondent Diane Levine filed her brief in the United States Supreme Court in Wyeth v. Levine, 06-1249. The brief can be found here, Wyeth v. Levine, 06-1249, Brief for Respondent. For now, we’ll limit our commentary to an acknowledgment that the brief is a masterful rebuttal to Wyeth’s illusory approach at implied conflict preemption and the empty rhetoric in support of the wholesale banning of prescription drug lawsuits.

I leave you with this snippet from the brief, which is an apt summary of the absence of any conflict between state tort regimes and the FDA’s regulatory scheme:

Both state and federal law require drug manufacturers to provide physicians with information about the risks of their products. As recently as 1998, FDA recognized the complementary nature of those duties, stating that it “does not believe that the evolution of state tort law will cause the development of standards that would be at odds with the agency’s regulations.” In both Bates and Lohr, the Court held that the existence of federal labeling rules did not, without more, deny states “‘the right to provide a traditional damages remedy for violations of common-law duties” that “parallel federal requirements.'” Although “the threat of a damages remedy will give manufacturers an additional cause to comply” with federal rules, that does not makes such suits obstacles to federal purposes.

Respondent’s Brief, at 45 (citations omitted).