The Wall Street Journal is reporting that a Texas judge is about to toss out 1,000 Vioxx lawsuits, under a Merck claim that an FDA ruling in February 2006 preempts lawsuits in state court. The court’s ruling is expected next week.
That FDA rule says the agency’s approval process trumps state law in how manufacturers of health-care products must warn consumers about their potential risks.
This, in my opinion, is anything but a slam dunk on appeal, as the FDA isn’t Congress and may not have the authority to create such a preemption rule. If Congress wanted to create such a preemption statute as they have for other things (such as medical devices) it could have done so. But it has decided not to.
While some attempts to preempt state law in this fashion have succeeded, others have failed. When the ruling is published next week, expect much talk in the legal blogosphere on the subject, and a visit one day to the U.S. Supreme Court.
WSJ, by Heather Won Tesoriero (subscription needed $): Ruling in Texas Vioxx Case Could Be a Boon for Merck
Addendum 4/13/07 – WSJ Health Blog now has the story without need for subscription.
Addendum 2.0 — 4/13/07 — Closing the courthouse doors by regulation instead of legislation is the type of tort “reform” that Walter Olson discussed at Point of Law on March 1, 2007: Liability reform’s new direction: procedure