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Dangerous Drugs & Medical Devices News & Commentary on Prescription Drug & Medical Device Lawsuits

Another Wyeth Preemption Case Goes to the Supreme Court

Posted in Preemption

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.

Source: Big names, high stakes in quartet of pre-emption cases

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.