Rick Kuykendall on Preemption and the Supreme Court

On November 3 the Supreme Court begins hearing arguments in Levine v. Wyeth. For drugs and biologics,  this is the key test of preemption. The case, in which Wyeth is challenging a Vermont ruling which awarded $6.8 million in damages to a woman injured by Wyeth anti-nausea drug Phenargan, could determine the viability of “failure to warn” claims, which constitute the bulk of tort suits against drug manufacturers. The presidential election is the next day and one of the most momentous and least-discussed topics in the presidential campaign is the likely departure in the next four years of as many as three of the more liberal justices on a closely divided U.S. Supreme Court. With Obama leading and Democrats driving for 60 Senate seats, the critical significance can't be understated.

Scott Drake discusses the implications with Rick Kuykendall in Part 1 of 2