Hogan Lovells Publications | International Product Liability Review | June 2017

Wyeth v. Levine reinterpreted: Preemption is sometimes a question for the jury

The U.S. Circuit Court of Appeals in Philadelphia recently evaluated the appropriateness of the District Court's order granting summary judgment, on grounds of preemption, in the Fosamax litigation. This concerned claims by multiple plaintiffs alleging that Merck & Co failed to adequately warn about the risks of thigh-bone fractures associated with the drug Fosamax.

The primary factual inquiry at issue was whether the U.S. Food & Drug Administration (FDA) would have approved a warning about bone fractures prior to September 2010. This was the date on which the FDA taskforce published a report finding that "there is evidence of a relationship between long-term [bisphosphonate] use and a specific type of subtrochanteric and femoral shaft fracture."

In this article, our team analyzes the background facts, Third Circuit judgement, and broader implications as they relate to this developing case.

Read More: Wyeth v. Levine reinterpreted: Preemption is sometimes a question for the jury

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