Two Preemption Cases Back to District Courts
The Third Circuit Court of Appeals has sent two drug preemption cases back
to district courts for further proceedings in light of the Supreme Court’s ruling in Wyeth v. Levine. Colacicco v. Apotex was sent back to a Pennsylvania federal court, while McNellis v. Pfizer goes back to a New Jersey federal court. A three-judge appeals court panel noted
that the Supreme Court had reversed the appeals court’s decision in the two cases and remanded for reconsideration in
light of Wyeth v. Levine, in which the high court rejected the company’s contention that a state failure-to-warn suit was preempted
by federal law.
The appeals court judges said they asked parties in the two cases to comment on the effect of the
Wyeth decision on these two cases. The two drug companies said they believed that the appeals court ruling was consistent
with Wyeth, while the plaintiff families said that the companies had not met the heavy burden imposed by the high
court in Wyeth on manufacturers seeking to preempt failure-to-warn claims. The plaintiffs’ attorneys suggested
that the appeals court reverse the preemption ruling in Colacicco and remand both cases to the district courts for
further proceedings, and the appeals court agreed.
In a related action, the U.S. Solicitor General informed the
appeals court that it was withdrawing its amicus brief filed in Colacicco in support of Apotex. “FDA
has not yet conducted the sort of reexamination of various preemption issues following the Supreme Court’s decision
in Wyeth that would be necessary to inform a position of the United States in this case,” the department said
in a letter to the court. “Accordingly, the United States hereby withdraws the amicus
brief previously filed in this court.”
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