The folks over at the Drug and Device Law Blog were cheering this weekend after Cleveland federal district Judge Solomon Olivier Jr. ruled that one class of state law tort claims against drug manufacturers was still pre-empted by federal law (pdf), even after the Supreme Court opinion in Wyeth v. Levine (pdf).
Olivier was considering a case involving the Wyeth drug Redux, which was part of the diet-drug cocktail known as fen-phen. In February 2008 he dismissed the plaintiff's case in its entirety, finding that her liability and negligence claims were pre-empted (and the other claims failed on their merits). The plaintiff, who is represented by Benjamin Anderson of Cleveland's Anderson Law Office, asked the judge to reconsider in light of Levine.
He did -- and he upheld his previous ruling. Key to Olivier's 13-page ruling in Longs v. Wyeth were the plaintiff's allegations that Redux was so dangerous a drug that it never should have been approved by the Food and Drug Administration. That permitted the judge to draw a distinction between this case and those in which plaintiffs assert that drug labels didn't provide adequate warning of side effects after the drug's approval. "While [Levine] may stand for the proposition that post-FDA approval claims are preempted, it does not purport to hold that the same is true for pre-FDA approval claims," the judge wrote.
"This is the first detailed ruling finding a claim is pre-empted," said Dechert counsel James Beck, who co-authors the Drug and Device Law blog. "It says yes, there still is pre-emption."
Reed Smith represents Wyeth in the Longs case. We called partner Eric Alexander but didn't hear back. Plaintiffs counsel Anderson told us he wasn't immediately available for comment.
This article first appeared on The Am Law Litigation Daily blog on AmericanLawyer.com.
