Preemption after Wyeth v. Levine

Douglas G. Smith

Kirkland & Ellis LLP; Loyola University Chicago School of Law; American Enterprise Institute (AEI)

May 25, 2009

Ohio State Law Journal, Vol. 70, No. 6, 2009

This Article addresses the Supreme Court’s recent preemption decision in Wyeth v. Levine. In Wyeth, the Court held that the Food and Drug Act did not preempt a state law tort suit alleging that the labeling for an anti-nausea medication, Phenergan, failed to adequately warn about the risks associated with IV-push administration of the drug. Already, Wyeth has been interpreted by some as sounding the death knell for the preemption doctrine in the context of pharmaceutical products. However, a careful analysis of the Court’s decision indicates that this is far from the case. The majority underscored that its decision was a 'narrow' one based largely on the facts and circumstances before it. In particular, the Court made a point of noting that the record was devoid of evidence that the particular risks at issue had actually been considered by the FDA and that the defendant had thus failed to show that there was an actual conflict between FDA regulation and the state law tort suit. The majority’s analysis therefore suggests that state law tort suits based on an alleged failure to warn are preempted in cases in which the FDA has specifically considered the particular risks at issue and has determined that the pharmaceutical product’s labeling adequately warns of those risks. I argue that the ruling thus construed has significant benefits. As the Court has repeatedly recognized, there is an inherent tension between the congressional establishment of a federal regulatory regime for the labeling of pharmaceuticals and medical devices by experts at the FDA and allowing a jury of ordinary citizens with no specialized expertise to render their own judgment regarding, and in effect overrule, such expert determinations. As several members of the Court have noted, there is a potential danger in allowing these expert decisions to be undermined by state court juries. Moreover, such an outcome may have undesirable indirect effects, such as raising the prices of pharmaceutical products to satisfy state court judgments that are not warranted based on the best available scientific evidence and the potential confusion and inconsistency that may result with juries in fifty-two separate jurisdictions imposing different standards concerning what constitutes appropriate labeling. The Court’s decision properly balances these competing considerations.

Number of Pages in PDF File: 47

Keywords: preemption, Wyeth v. Levine, civil litigation, constitutional law

JEL Classification: K10, K13

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Date posted: May 27, 2009 ; Last revised: June 2, 2013

Suggested Citation

Smith, Douglas G., Preemption after Wyeth v. Levine (May 25, 2009). Ohio State Law Journal, Vol. 70, No. 6, 2009. Available at SSRN: https://ssrn.com/abstract=1409678 or http://dx.doi.org/10.2139/ssrn.1409678

Contact Information

Douglas Geoffrey Smith (Contact Author)
Kirkland & Ellis LLP ( email )
300 North LaSalle
Chicago, IL 60654
312 862 3374 (Phone)
Loyola University Chicago School of Law ( email )
25 E. Pearson
Chicago, IL 60611
United States

American Enterprise Institute (AEI) ( email )
1150 17th Street, N.W.
Washington, DC 20036
United States
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