This guest post is by Kevin Hara, an associate at Reed Smith and relatively frequent contributor to the Blog. Here, he discusses two recent favorable procedural developments in further appeals from two really awful decisions by intermediate courts of appeals. As always, our guest posters are 100% responsible for what they write – due 100% of the credit, as well as any blame. Take it away Kevin.
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SCOTUS Calls For Solicitor General’s Views In Third Circuit Fosamax Case
Friday December 8 was a day with two items that are particularly noteworthy because of their potentially momentous implications. Remember the Blog’s previous lambasting of the Third Circuit’s unprecedented Fosamax preemption decision and the haymaker that court unleashed on the drug and device industry, in In re Fosamax (Alendronate Sodium) Products Liability Litigation, 852 F.3d 268 (3d Cir. 2017)? Now, there is positive news to report. The Supreme Court has invited the Solicitor General “to file a brief in this case expressing the views of the United States.” Merck, Sharp & Dohme Corp. v. Albrecht, et al., No. 14-1900 (Order, Dec. 8, 2017).
What is that? Here is SCOTUSBlog’s description:
“CVSG” stands for “call for the views of the Solicitor General.” In most cases in which someone is seeking review of the lower courts’ decision, the Court will issue a straightforward grant or denial. But sometimes the Court will want the government’s views on what it should do in a case in which the government isn’t a party but may still have an interest — for example, because the interpretation of a federal statute is involved. So the Court will issue an order in which it “invites the Solicitor General to file a brief expressing the views of the United States.” It isn’t an “invitation” in the sense that the federal government gets to decide whether it wants to file a brief at all, because the Court expects the government to file. There is no deadline by which the government is required to file the brief, however. And the government’s recommendation, although not dispositive, will carry significant weight with the Court.
In Fosamax, this development is important because it signals that the case stands out from the general certiorari pool, meaning that review is more likely to be granted. Statistics are surprisingly hard to come by, but a law review article, Thompson & Wachtell, “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General,” 16:2 G. Mason L.R. 237 (2009), analyzed ten years of Supreme Court cases (1994-2004) and concluded:
The overall grant rate increases from 0.9% to 34% following a CVSG from the Court; in other words, the Court is 37 times more likely to grant a petition following a CVSG. For petitions on the paid docket, the grant rate increases even more, to 42%; a paid petition is 47 times more likely to be granted following a CVSG.
Id. at 245 (emphasis added). If those somewhat dated statistics are even close to currently accurate, the Fosamax CVSG is a big deal.
Recall that the Third Circuit grossly misinterpreted the “clear evidence” preemption test from Wyeth v. Levine, which held that without clear evidence that the FDA would not have approved the label change, a court cannot rule a manufacturer’s compliance with federal and state law is impossible, and thereby preempted, already an exacting defense. As the Blog explained in praising the petition for certiorari, the Third Circuit distorted Levine, applied an unprecedented standard, and ruled that a...
