Class Action and Product Insights for Your Business
March 16, 2018 - Appellate & Supreme Court, Drug & Medical Device, Product Liability

Will High Court Provide Clarity On ‘Clear Evidence’?

Will High Court Provide Clarity On ‘Clear Evidence’?

The U.S. Supreme Court may soon revisit one of its seminal decisions defining products liability law for pharmaceutical manufacturers. That decision — Wyeth v. Levine — addressed whether a branded manufacturer could be held liable for state-law failure-to-warn claims even though federal law regulates the contents of its drug’s label.

Lower courts have struggled to apply Levine’s “clear evidence” standard, and the Third Circuit, in In re: Fosamax, arguably gutted it altogether. Merck & Co for a writ of certiorari in In re: Fosamax is pending before the Supreme Court, where it awaits the views of the Solicitor General. If the Supreme Court grants certiorari, it could signal that In re: Fosamax will be overturned and lower courts (as well as branded manufacturers) will finally receive guidance on Levine’s “clear evidence” standard.

Please see our full article as published on Law360.