OT: rumors for Obama's solicitor general pick

[Guest guest]

Frederick of the Kellog Huber law firm represented the

plaintiff (the musician who lost her arm from a Wyeth product) in the

preemption case before the Supreme Court. Frederick argued that the

FDA's approval of a product does not preempt state law or disallow

consumers from suing drug companies. He may win. Comment about rumors

for solicitor gen. pick at end of article. According to the usual big

media articles on it, the solicitor general is sometimes referred to

as the " 10th justice " (of the Supreme Court) because of pivotal

role.

http://www.pharmalot.com/2008/12/the-supreme-court-and-a-preemption-

case/

The US Supreme Court And A Preemption Case

7 Comments

By Ed Silverman // December 15th, 2008 // 2:45 pm

For those wondering whether the US Supreme Court will dispense with

preemption and allow consumers to sue drugmakers in state courts, a

narrow decision today may offer some clues. In a 5-4 vote, the court

ruled that tobacco companies can be sued under state laws for

deceptive advertising of " light cigarettes " (here is the ruling).

At issue was whether federal regulators have ultimate power over

nationwide marketing practices that would, essentially, block state

courts from hearing lawsuits involving tobacco. The tobacco makers

argued their labels had been approved by the Federal Trade Commission

and, as a result, they were preempted, or exempt, from product-

liability lawsuits, because they followed packaging regulations.

Similarly, drugmakers argue that FDA approval of a drug supercedes

state law claims challenging safety, efficacy, or labeling. Both

pharma and the FDA maintain preemption exists by maintaining the

agency's actions are the final word on safety and effectiveness. And

the Supreme Court is currently reviewing such a case involving a

Vermont musician who lost her right arm in a clinic after being

administered a Wyeth drug. She sued for inadequate labeling and won;

Wyeth is appealing (lots of background right here).

The decision, therefore, will be closely watched because it will

determine whether patients can sue a drugmaker through state law when

a product has already been approved by the FDA. Whether today's

ruling is a foreshadowing of the Wyeth v. Levine case is not clear,

but one trial lawyer took the outcome as a positive. " The plaintiffs

picked up Kennedy (in the voting), who was up for grabs but not very

friendly at oral argument " in the Wyeth hearing last month, Ellen

Relkin of Weitz Luxenberg tells us.

There is some linkage here. The ruling today is a victory for

Frederick of the Kellogg Huber law firm, who represented the smokers

who brought the case, the WSJ Washington Wire notes. He also

represented Levine before the Supreme Court. And there is Beltway

talk that he may become the next US Solicitor General.