Wyeth v. Levine: “That be pre-empted.”

Here I previewed Wyeth v. Levine, the latest and arguably biggest case testing the limits of SCOTUS’s willingness to use the Supremacy Clause of the U.S. Constitution as an instrument of tort “reform.” The Court held oral argument today, and the transcript is available here (pdf, 66 pages).

At issue is whether the tort law of Vermont regarding a drug manufacturer’s failure to provide adequate label warnings conflicts with the federal Food and Drug Administration’s labeling regulatory scheme. I know better than to try predicting votes based on oral argument, but what the hell. I do all sorts of things I know better than to do.

Scalia and Roberts clearly favor the drug manufacturer. Thomas was characteristically silent, but he’ll side with the drug manufacturer as well. Ginsburg pretty clearly favors the plaintiff. The remaining Justices, based solely on their questions, could go either way. For example, Kennedy thinks that one component of Wyeth’s preemption argument is wholly bogus, but he seems much more sympathetic to an alternative argument. Thus, we could be looking at anything from 6-3 win for the plaintiff to an 8-1 win for Wyeth. Most likely outcome: 5-4 win for Wyeth.

BTW, the quote in the title of this entry appears on Page 34 of the transcript. In response to a hypothetical posed by Justice Alito, counsel for Ms. Levine said, “That be pre-empted.” Probably a transcription error (“That would be pre-empted” seems more likely), but for now I choose to believe that at least some manifestations of the consuetudinal “be” are acceptable in SCOTUS oral argument discourse these days.

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