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The U.S. Supreme Court’s recent decision in Merck Sharpe & Dohme Corp. v. Albrecht, confirms that in all but exceptional circumstances, consumers can still recover after being injured by brand-name prescription drugs, and that preemption remains a “demanding defense.” __ U.S. __ (2019) (slip op. 13). In so ruling, however, the majority of the court added a new wrinkle to deciding preemption cases with its conclusion that judges, not juries, should decide whether federal drug regulation preempts state-law tort claims.

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