Right on cue, the preemption fallout is here. Less than a week after the Supreme Court ruled in Wyeth v. Levine that FDA approval of drug labels does not shield drugmakers from tort liability in state courts, two Third Circuit preemption victories for pharmaceutical companies have been thrown out. On Monday, the Supreme Court granted petitions for certiorari, vacated the appellate decisions, and remanded two cases–Colacicco v. Apotex and Pennsylvania Employees Benefit Trust Fund v. Zeneca–to lower courts for further proceedings.

Dechert’s James Beck, whose Drug and Device Law blog tipped us to the Supreme Court’s new preemption orders, predicted this outcome when we spoke to him last week. Just as interesting, he said, will be what happens in cases that have yet to be decided. “There are numerous other cases in the lower courts that have been formally or informally stayed pending the Wyeth decision, and now they’ll begin to proceed pretty quickly,” Beck told us.

For now, Zeneca, part of AstraZeneca, and codefendants GlaxoSmithKline and Apotex (a Canadian generics company) will once again be defending themselves against allegations that they failed to adequately warn of risks associated with their products–though this time they won’t have preemption on their side. Sidley Austin’s Mark Haddad represented AstraZeneca in both the company’s original Third Circuit case and before the Supreme Court. Chilton Varner of King & Spalding represented Glaxo and Apotex at the Supreme Court; in the Third Circuit Glaxo had K&S and Apotex had Rawle & Henderson. Sidley and K&S referred our calls to corporate spokespeople. Glaxo e-mailed us a comment that said, in part, “GSK is evaluating the appropriate next steps and continues to deny liability.”

According to the Supreme Court docket, the plaintiffs lawyers are Earl Landers Vickery of Austin for Colacicco and Steve Berman of Seattle’s Hagens Berman Sobol Shapiro for the Pennsylvania Employees trust.

Meanwhile, the Manhattan Institute is proposing an alternative to the court system for dealing “with the consequences of serious and unforeseen drug side effects.” The conservative think tank suggests that Congress enact a victim’s compensation program similar to the national vaccine fund for drug victims. It’s not the first time the idea has been floated, but in the wake of the Levine ruling, the Manhattan Institute paper makes for interesting reading.