A WSJ editorial and news coverage have called attention to a case from the Alabama high court holding Pfizer liable for a drug it didn’t produce, namely a generic knockoff of its acid reflux drug Reglan. Michael Greve agrees that it’s daffy to allow such suits, but traces the problem to the U.S. Supreme Court’s popular (at least with the media) 2009 decision in Wyeth v. Levine, okaying state tort actions over federally approved labels — and cautions that any victories for regulated business on the issue of federal-state preemption tend to be temporary at best. More: Coyote, FedSocBlog.
After the quarter-century disgrace that is Proposition 65 litigation — run by and for lawyers’ interests, with no discernible benefit to the health of the citizenry — you’d think California voters would have learned a thing or two. But unless poll numbers reverse themselves, they’re on the way to approving this fall’s Proposition 37, ostensibly aimed at requiring labeling of genetically modified food, whose main sponsor just happens to be a Prop 65 lawyer. I explain in a new piece at Daily Caller. More coverage: Western Farm Press; Hank Campbell, Science 2.0; Ronald Bailey, Reason (& Red State).
More: defenders of Prop 37 point to this analysis (PDF) by economist James Cooper, arguing that 37 is drafted more narrowly than 65 in ways that would avert some of the potential for abusive litigation. And from Hans Bader: would the measure be open to challenge as unconstitutional, or as federally preempted?
Under the Federal Food Drug and Cosmetics Act (FDCA), drugs sold in the United States require an FDA-approved label—the elaborate, incomprehensible (to laymen) sheets you find inside every package. Every sentence is dictated by FDA requirements, down to the font and letter size. Violations of these requirements, and the sale of drugs without the label or a different label, are subject to very severe penalties. The statutory scheme operates to the explicit exclusion of any state regulatory (administrative) scheme. What Wyeth asks us to believe is that state juries may nonetheless hold drug manufacturers liable, for accidents caused by use in direct contravention of the federal label, on the grounds that the federally required label was inadequate. Meticulous compliance with federal requirements doesn’t preempt “failure to warn” liability under state common law.
James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.
P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.
- Jack Park on Bruesewitz v. Wyeth vaccine preemption case at Supreme Court [Heritage]
- Incidentally happening to assure lawyers more access to work: Harvard’s Tribe devises “access to justice” initiatives for Obama administration [BLT]
- New Haven cops accidentally photograph themselves deleting video of an unlawful arrest [Balko]
- How elite law culture miscomprehends the military [Second Circuit chief judge Dennis Jacobs speech at Federalist Society convention, YouTube]
- “Later, Bad Lawyer”: a blogger heads to prison [Greenfield]
- Reform medical liability? Depends on how badly you want neurosurgeons’ services [Michael Lavyne, NYDN]
- “Cab-rank principle” in legal ethics explained [Lawyers’ Lawyer, Australia; via Legal Ethics Forum]
- $3.5 million award to unsuccessful suicide-while-in-custody is one of long series of such cases [six years ago on Overlawyered]
- Gulf spill fund flooded with dubious claims [Fred Smith, CEI]
- If these cases go forward, it will make it economically unfeasible for anyone to make vaccines in this country” [NYT quoting Beck on Bruesewitz v. Wyeth preemption case now before SCOTUS]
- Barney Frank’s evolving views on Fannie/Freddie oversight [Mankiw, Globe]
- $5.2 million legal bills to Michael Jackson estate [TMZ]
- Frederick, Maryland pizzeria owner asked to pay $200K for unsolicited faxes [Gazette; my WSJ take four years ago]
- UK: “Migration Watch” may sue critic [David Allen Green via Richard Wilson, more]
- Parody of cheesy law firm promotes TV series “Breaking Bad” [“Better Call Saul“, autoplays video/audio]
- N.J.: “Drowns while fleeing cops, family sues for $50M” [five years ago on Overlawyered]
As we have seen in earlier coverage, automakers will get sued over some kinds of accident if they decide to use laminated glass, and sued over others if they decide to use nonlaminated glass. Now Ted at Point of Law has details of another case, this one against Ford, in which the South Carolina Supreme Court held that NHTSA regulations resolved the issue at hand and should not be second-guessed by tort litigation. Unfortunately, as Ted notes, the trial bar and its allies in the Obama administration are doing their best to weaken the preemption defense, which would open up maximum scope for sued-if-you-do, sued-if-you-don’t litigation of this sort.
- Federal preemption of state law: compare and contrast illegal-immigration control with auto and drug design [Ted and Carter at PoL; upcoming (Jul. 21) Cato panel discussion in DC]
- Authorities in Scotland let Lockerbie bomber off on doctor’s note. How’d that work out? [Bainbridge]
- Pay for your rescue: “French tourists may be billed if high-risk trips go wrong” [Guardian]
- Must revoke honorific California-state-rock status of serpentine! It contains asbestos! [L.A. Times “Booster Shots” via Amy Alkon]
- “Zero tolerance for bullying” — nice slogan, but think before endorsing [Helene Guldberg, Daily Mail via Skenazy]
- “The New Black Panther Case: A Conservative Dissent” [Abigail Thernstrom, NRO; earlier]
- $113,800 in damages in pregnancy-bias suit against Lucasfilm, but demand for attorney’s fees could reach $1.2 million [SF Chronicle]
- Trial lawyers fear being cut out of BP TransOcean pie [WSJ Law Blog, Bainbridge, Calif. Civil Justice]
- Automakers fight Bruce Braley/trial lawyer effort on Capitol Hill to overturn NHTSA preemption [Dow Jones, WSJ Law Blog, David Freddoso/Examiner, Carter Wood and more at PoL]
- Twombly/Iqbal can curb sue-’em-all, sort-’em-out-later charges of civil conspiracy [Sachse/Drug & Device Law, earlier]
- Claim: Obama, Kagan, Sotomayor typify “postradical” law school generation [David Fontana, Chronicle of Higher Ed via Wasserman/Prawfs (counter: “there are a lot of us liberal doctrinalists out here …And students are learning that vision in law school”), Althouse (“Spare me! There are plenty of strongly liberal and lefty lawprofs and if you want theoretical ambition you can find it.”)]
- FTC report contemplates much wider federal intervention in media business [Jarvis/BuzzMachine, Tapscott/Examiner, Coyote, Steele/LEF, Stoll/Future of Capitalism, LA Times, ShopFloor, Jarvis/NY Post, Pethokoukis/Reuters, Suderman/Reason] Is scary McChesneyite “Free Press” making headway in administration? [Riggs, Daily Caller]
- “Law and Society Boycott Resolution Gets Arizona Immigration Law Wrong” [Chin, Prawfs]
- “Appeal of Crunch Berries Case Dismissed” [Lowering the Bar, earlier]
- “Senior U.N. official” demanding end to U.S. use of drones against Al Qaeda in Afghanistan also happens to be NYU lawprof [NY Times, 16th/last paragraph of story]
- Unintended consequences: 1932 cut in judges’ pensions changed Supreme Court history [Magliocca, ConcurOp]
- German law firm demands that Wikipedia remove true information about now-paroled murderers [EFF] More: Eugene Volokh.
- “Class Actions: Some Plaintiffs’ Lawyers Fed Up, Too?” [California Civil Justice]
- Drop that Irish coffee and back away: “F.D.A. Says It May Ban Alcoholic Drinks With Caffeine” [NYT]
- Profile of L.A. tort lawyers Walter Lack and Thomas Girardi, now in hot water following Nicaraguan banana-pesticide scandal [The Recorder; my earlier outing on “Erin Brockovich” case]
- Federalist Society panel on federalism and preemption [BLT]
- Confidence in the courts? PriceWaterhouseCoopers would rather face Satyam securities fraud lawsuits in India than in U.S. [Hartley]
- Allegation: Scruggs continuing to wheel and deal behind bars [Freeland]
- Not much that will be new to longtime readers here: “Ten ridiculous lawsuits against Big Business” [Biz Insider] P.S.: Legal Blog Watch had more lists back in June.