We reported two weeks ago on an order favoring implied preemption in an innovator prescription drug case coming out of the Eliquis MDL in New York. One week after that order, the Ninth Circuit filed an unpublished opinion reversing an order from the In re Incretin-Based Therapies MDL in the Southern District of California that similarly favored implied preemption. With these recent events, it is tempting to construct an east-versus-west narrative around federal preemption, but the cases don’t really line up that way (see, e.g., the very eastern Fosamax opinion from the Third Circuit, discussed in detail here, here, and here). Still, when we saw the recent preemption juxtaposition of California against New York, we could not help but think of the 1977 World Series, with Reggie Jackson hitting home runs by the handful to lead the Yankees over the Dodgers. You have the Brooklyn Bridge versus the Golden Gate. Broadway versus Hollywood. Letterman versus Leno. We are told that the Los Angeles Kings recently played the New York Rangers in the ice hockey Stanley Cup finals, but if that actually occurred, we overlooked it.
Of course, one thing that New York and California have in common is that they both cast their electoral votes in the 2016 presidential election for a candidate that did not win. At least New York has the consolation that both major-party candidates hailed from New York, a situation that has not occurred since Franklin Roosevelt defeated Manhattan attorney Thomas Dewey in 1944. We do not believe there has ever been a New York versus California presidential election, but we have not looked it up. Bexis points out that one of FDR’s general election opponents was Herbert Hoover, who relocated from Iowa to California, so we guess that counts. California Governor Ronald Reagan and New York Senator Robert Kennedy both sought their parties’ nominations in 1968, but neither prevailed. We can only imagine what kind of general election that would have been.
When it comes to federal preemption, we would not have cast our vote for the Ninth Circuit’s unpublished opinion in In re Incretin-Based Therapies Products Liability Litigation, No. 15-56997, 2017 WL 6030735 (9th Cir. Dec. 6, 2017). The plaintiffs in In re Incretin claim that the defendants did not adequately warn about the risk of pancreatic cancer in connection with their prescription diabetes drugs. The FDA, however, has said on multiple occasions that a causal association between the drugs and...
