News

On November 15, 2012, CCL Senior Litigation Counsel Louis Bograd spoke at a mass torts seminar at the Ohio Association for Justice Mid-Winter meeting in Cleveland. Bograd’s speech, entitled Drug and Device Litigation: Understanding and Coping with the Supreme Court's Evolving Preemption Jurisprudence, reviewed the Supreme Court’s preemption jurisprudence over the past two decades with particular regard to its application to products liability claims against the manufacturers of products regulated by the FDA including medical devices, prescription and non-prescription drugs, and vaccines. Bograd advised the audience that attorneys litigating products liability and consumer protection claims involving products regulated by the FDA need to understand the reach and limits of the doctrine of FDA preemption as it applies to each regulated product.

The U.S. Supreme Court denied certiorari this morning in McNeil-PPC, Inc. v. Hutto, a preemption case in which CCL represented the respondents. In Hutto, McNeil—the manufacturer of Tylenol—tried to argue that the logic of the Supreme Court’s implied preemption ruling in Pliva, Inc. v. Mensing required preemption of plaintiffs’ claims, even though the drug at issue in Hutto was neither a generic nor a prescription drug. Federal law regulates over-the-counter (OTC) drugs in an entirely different way from prescription drugs—through a monograph system—and expressly preserves product liability claims against OTC drug manufacturers, but McNeil argued that these factors did not preclude implied preemption and sought review of a judgment against it in the Louisiana state courts. Today, the court denied McNeil’s petition without recorded dissent, Justice Alito not participating. CCL’s Lou Bograd, who argued Mensing before the Supreme Court, handled the opposition to the certiorari petition.

CCL’s Andre M. Mura filed an amicus brief in support of the plaintiffs/appellees in Wyeth Pharmaceuticals, Inc. v. Daniel, Nos. 63 & 64 EAP 2011, now pending before the Pennsylvania Supreme Court. The brief, filed on behalf of the Pennsylvania Association for Justice, argues that the Federal Drug Administration’s oversight of drug safety is no warrant for barring state-law remedies awarded to punish and deter a drug manufacturer’s reckless disregard for patient safety.

The Supreme Court has ruled in Pliva, Inc. v. Mensing, 131 S. Ct. 2567 (2011), that state-law failure-to-warn claims against generic drug manufacturers are preempted. The Court split 5-4 in ascertaining congressional intent; all nine justices agreed, however, that the outcome in this case “makes little sense.”

CCL’s Louis M. Bograd was lead counsel for respondents. The New York Times has early coverage.