Miscellaneous

Medtronic Plus: The Face and Future of Preemption

By Anne Skove, Esq.

Thirteen million dollars' worth of punitive damages awarded by a jury tossed: this is what preemption looks like.

While the Texas Vioxx award, tossed due to lack of evidence, seems to be getting more ink ("evidence" is apparently easier for reporters to spell than "preemption"), the New Jersey ruling based on preemption is a far more likely and, for those interested in the Seventh Amendment, dangerous future.

The opinion is John McDarby, et al. vs. Merck & Co., Inc., A-0076-07T1 (May 29, 2008). (See also the 2008 Opinion Notices; we're having a heck of a time opening it.)

The New Jersey Star-Ledger, writing over a week before yesterday's appellate opinion, called on Congress to "resist a push to insulate pharmaceutical companies from state lawsuits." They caution that the FDA is not "fool-proof" (no kidding!). "Closing state courthouse doors to people hurt by dangerous drugs would be a dramatic shift in the law and a huge mistake. [...] Some efforts to reduce litigation are worthwhile. This one isn't. The threat of lawsuits creates much-needed financial incentives to keep drug companies honest. Freeing pharmaceutical companies from that threat would only encourage bad behavior and put the public at increased peril, a risk too great when dealing with an industry in which unsafe products can cause serious injury and death." See Extra Protection for Patients, Star-Ledger (May 20, 2008).

After the SCOTUS held that the FDA insulates medical device manufacturers from lawsuits, can drug manufacturer protection be far behind? Welcome to the downfall of the civil justice system.

See Vioxx Awards Overturned, Susan Todd. Star-Ledger (May 30, 2008); Plaintiffs Lawyer Lanier to Appeal Vioxx Reversal, Brenda Sapino Jeffreys, Texas Lawyer (May 30, 2008); Cona/McDarby -- Split Vioxx Appellate Decision, Drug and Device Law Blog (May 29, 2008) ("Herrmann hasn't read it yet" -- is he on vacay?!); Preempt-O-Rama, court-o-rama (March 5, 2008); and A Win (for Some), court-o-rama (February 20, 2008).

See also the Vioxx section of the New Jersey Judiciary's Mass Tort Centralized Management Information Center.

Full post as published by court-o-rama.org on May 30, 2008 (boomark / email).