Richard Epstein on Wyeth v. Levine

The Chicago lawprof discusses the pending Supreme Court case on implied pre-emption:

…it is folly to act as if the private lawsuits attacking FDA warnings just backstop a porous and lax FDA. Often those lawsuits add an unwanted deterrent against the sale of desperately needed drugs. That risk is multiplied by hyperventilated state tort law that, in many instances, is lopsidedly pro-plaintiff.

(“Wyeth v. Levine Could Endanger Your Health”, Forbes, Nov. 11). Much more on the debate at Point of Law here, here, here, etc.


  • Beck & Herman’s Drug and Device Law has had a bunch of good Levine coverage as well, at least if you want the pro-ppharma side.

  • While Prof. Epstein provides an excellent theoretical response to his “But why go after the drug manufacturer, Wyeth, as well?” query, the practical reason is more simple: the plaintiffs’ bar always goes after the deep-pocketed defendant. Blame joint and several liability, plaintiff-friendly evidence codes, or least-common-denominator jurors, unless and until judges foreclose on upstream liability in warnings cases, manufacturers will not be immune.

  • Bruce,

    That can’t be true. My torts professor assures me that tort lawyers don’t do that. Tort is the source of truth and justice in America. Without which the rights of the little would be trampled on by the big feet of the rich.

  • So, of course, the correct remedy is to ignore the statutory-construction presumption against implied preemption and eliminate all state tort law that relates to products liability. Well, that seems completely reasonable.

    Give it up, guys. Even if the SC is crazy enough to do that, it’s a statutory construction issue that the next Congress can and will reverse by making non-preemption explicit.

  • The statutory-construction “presumption against implied preemption” has no legitimate constitutional basis, as Epstein has explained elsewhere.

    And certainly Congress can choose to explicitly forbid preemption, though that would be an exceptionally poor public-policy choice.