Friday, March 27, 2009

New third circuit decision on preemption

The Drug and Device Law Blog is reporting today that the Court of Appeals for the Third Circuit has just affirmed summary judgment on grounds of express preemption under the Vaccine Act in Bruesewitz v. Wyeth, (available here). The court, examining the history of Vaccine Act, concluded that Congress intended to apply Restatement (Second) of Torts §402A, comment k (1965) across the board to bar all design defect claims, whether sounding in negligence or strict liability, against vaccines covered by the Act. The opinion creates a split of authority by specifically disagreeing with the analysis of the Georgia Supreme Court in American Home Products Corp v. Ferrari, 669 S.E.2d 236 (Ga. 2008) (available here). As D&DLB says, given that Ferrari is currently before the Supreme Court on certiorari, "the split between the federal court of appeals and a state's highest court on a question of federal preemption raises the prospect of yet another High Court preemption battle regarding an FDA-approved product."

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