Some positive news about preemption
I just got a copy of a decision from the Southern District of Indiana that held preemption did not prevent a failure to warn lawsuit over Paxil:
Defendant SmithKline Beecham Corp. (“GSK”) manufactures and sells pharmaceuticals, including Paxil, an antidepressant. Plaintiff Debra Tucker brought this wrongful death suit under Indiana state law against GSK, claiming that her older brother, Father Rick Tucker, committed suicide as a result of taking Paxil. She contends that GSK breached its duty to warn of an increased suicide risk in adults taking Paxil. Finding that the federal Food and Drug Administration (“FDA”) required GSK to include language in its drug label that conflicted directly with the warning that Tucker argues was required under Indiana law, this court dismissed Tucker’s state law claims as preempted by federal law. See Tucker v.SmithKline Beecham Corp., 2007 WL 2726259 (S. D. Ind. Sept. 19, 2007).
Tucker filed a motion under Rule 59 asking the court to reconsider its decision. As explained below, Tucker’s motion to reconsider is granted and the judgment is vacated. In finding conflict preemption, the court failed to appreciate the significance of the fact that the FDA regulations allow a manufacturer to modify pharmaceutical labels unilaterally and immediately, without prior FDA approval, when the manufacturer has reasonable evidence of a serious hazard.
Source: Case 1:04-cv-01748-DFH-WTL
If you don't have access to PACER and want a copy of the decision, shoot me an email.