Audio Briefing on Levine to Feature David Frederick, Bert Rein, and Russell Jackson
The Practising Law Institute will be hosting from 1-2 p.m. EDT on April Fool's Day -- no irony intended -- a one-hour audio briefing on the Supreme Court's recent decision in Wyeth v. Levine and its impact on pharmaceutical and other litigation. CLE credit will be provided. You can register for the audio briefing here.
I will be moderating a discussion between two really first-rate panelists: David Frederick and Bert Rein. David is the noted Supreme Court advocate and author of The Supreme Court and Appellate Advocacy (West 2003). More important, he argued the plaintiff's case before the Supreme Court and won. Bert Rein -- also a noted Supreme Court advocate and preemption expert -- has been described by The Legal Times as Washington's "Leading Food and Drug Lawyer." He was on the brief for Wyeth in the Supreme Court.
Together, we will be considering a number of issues, including:
- What, exactly, is the holding of Wyeth v. Levine? And does it apply beyond pharmaceutical cases?
- Can an implied preemption argument succeed in a pharmaceutical case after Levine? If so, what would it require?
- What does the fact that Levine involved failure to warn claims say about potential preemption of design defect or manufacturing defect claims in drug cases?
- Does Levine – when read with Altria Group, Inc. v. Good, 129 S. Ct. 538 (2008) – provide a comprehensive framework for analyzing implied preemption arguments?
- What impact, if any, did Levine’s “presumption against preemption” have on the result?
- Did Levine effectively overrule Geier v. American Honda Motor Co., 529 U.S. 861 (2000)? And how do we synthesize the cases in which the Court has relied upon a “presumption against preemption” and those in which it has not?
- After Levine, what level of deference should be accorded to a regulatory agency’s statements about the preemptive effect of its rules made in: (1) a ‘preamble’ to a rulemaking, (2) an amicus brief, (3) public comments, (4) communications to those companies that it regulates?
- Is there a policy reason for treating drugs and devices differently when it comes to preemption?
I hope you can make it for what promises to be a lively and informative discussion between two excellent preemption experts.
