Today, on the last day of the United States Supreme Court’s 2018 Term, the Court issued an order granting review (“certiorari”) in Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 – which is the Supreme Court docket name for the defendant’s appeal from the horrible preemption decision (our worst case of the year for 2017) in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017). The brief Supreme Court order did not alter the question presented in the petition for review, which is:
Is a state-law failure-to-warn claim preempted when the FDA rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data; or must such a case go to a jury for conjecture as to why the FDA rejected the proposed warning?
That’s a nice, broad question that should encompass all of the subsidiary issues – burden of proof, judge vs. jury, and clear evidence, to name three – implicated by the Fosamax decision.
Here at the Blog, we had repeatedly supported Supreme Court review. We do note one unfortunate aspect of the order granting review: “Justice Alito took no part in the consideration or decision of this petition.” Since Justice Alito has historically supported preemption – he wrote the dissent in Wyeth v. Levine, 555 U.S. 555 (2009) – that means we’re short a vote. Conversely, the anti-preemption side might lose the vote of Justice Kennedy’s replacement (Justice Kennedy was in the Levine majority). But even with Justice Thomas (who supports only “impossibility” preemption), a combination of Roberts, Gorsuch, Thomas, and ______ would only get us to a 4-4 tie. However, we think that the Fosamax decision is bad enough that we should be able to draw a vote from one of the others (most likely Kagan or Breyer), at least on the procedural issues.