For cases on appeal with high stakes and difficult odds, big businesses have turned to Philippa Scarlett, a partner in Kirkland & Ellis’ New York office. Scarlett was among three partners who won a U.S. Supreme Court decision on June 23 in Pliva Inc. v. Mensing, a pair of cases challenging federal pre-emption of claims over the warning labels on generic drugs. Scarlett, 37, represented the defendant’s parent, Teva Pharmaceutical Industries Ltd.
Two prior circuit courts of appeal had ruled for the plaintiffs, and the Supreme Court in 2009 permitted similar challenges against brand-name drug manufacturers in Wyeth v. Levine. “Basically, all the major legal decisions that had been published before this case suggested perhaps the opposite result,” said Scarlett, a Columbia Law School graduate and former law clerk to Justice Stephen Breyer. But the Supreme Court, in a 5-4 opinion, found that state law tort claims against generic drug manufacturers are pre-empted by federal law if their warning labels comply with the regulations on the brand-name version.
Scarlett wasted no time in citing Pliva in briefs before the Nevada Supreme Court, which is hearing an appeal of a record $505.1 million verdict in Las Vegas last year awarded to individuals who were infected with hepatitis C after receiving the generic sedative propofol in two local clinics. Propofol maker Teva and the distributor, Baxter Healthcare Corp., face 200 suits.
Scarlett’s advocacy goes beyond corporations. In 2010, a judge issued a final judgment against Maryland’s human resources department, finding that poor residents had failed to receive benefits due to administrative lapses. “Our data shows that about 4,000 poor Marylanders are benefitting from this lawsuit every month,” said Scarlett, who brought the challenge. — Amanda Bronstad