Bruesewitz v. Wyeth looks like it will be the Wyeth v. Levine of vaccine lawsuits:
Erwin Chemerinsky, a liberal scholar, and Kenneth Starr, a conservative, may appear to be the Oscar and Felix of constitutional law, but they’re also friends and, perhaps surprisingly, share essentially the same view in one, increasingly hard-fought area of constitutional law. They both believe that federal law should trump state tort actions only when Congress has clearly stated that it must.
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In their brief in Bruesewitz v. Wyeth, they argue that the parents of a Pennsylvania girl, who was disabled by a vaccine, has the right to sue drug maker Wyeth. That’s despite a decision by the U.S. Court of Appeals for the 3d Circuit that held the claim was barred by federal law.
The fact that Chemerinsky and Starr are both signing onto this brief ought to give Wyeth a little heartburn. I haven’t yet read their brief, but I’m sure it will be loaded with lots of useful arguments for practitioners who are fighting preemption at all levels.