We read Michelle Yeary’s recent post about In re Fosamax Products Liability Litigation, ___ F.3d ___, 2017 WL 1075047 (3d Cir. March 22, 2017), with particular interest. We were especially intrigued with the research demonstrating that the Fosamax court had departed from numerous prior Third Circuit precedents (including an en banc decision) on the question of preemption being a matter of law – as all the prior decisions had held – as opposed to a question of fact (the Fosamax result).
We note that the defendant in Fosamax shares the same view, and has itself sought en banc reconsideration.
Since Michelle cited over a dozen prior decisions, it’s highly likely that this issue will arise again. That raises the question (if the Fosamax opinion stands, which it shouldn’t) , what happens when precedential decisions of the Third Circuit are in conflict? There certainly appears to be a direct conflict between the cases Michelle cited and the Fosamax decision.
We took a look.
In the Third Circuit, when two precedential opinions are in conflict, the earlier one – that is to say, in this instance, not Fosamax – controls. This proposition was described in Pardini v. Allegheny Intermediate Unit, 524 F.3d 419 (3d Cir. 2008). After referencing the same Third Circuit Internal Operating Procedure that Michelle did, Pardini held:
“This Circuit has long held that if its cases conflict, the earlier is the controlling authority and the latter is ineffective as precedents.” United States v. Rivera, 365 F.3d 213, 213 (3d Cir. 2004); see also Holland v. New Jersey Dep’t of Corrections, 246 F.3d 267, 278 (3d Cir. 2001) (“[T]o the extent that [a case within the circuit] is read to be inconsistent with earlier case law, the earlier case law . . . controls”); O. Hommel Co. v. Ferro Corp., 659 F.2d 340, 354 (3d Cir. 1981) (“[A] panel of this court cannot overrule a prior panel precedent. To the extent that [the later case] is inconsistent with [the earlier case, the later case] must be deemed without effect.”).
Id. at 426 (parenthetical and internal citations omitted). As Pardini pointed out, this rule is the opposite of what happens when two statutes are irreconcilable. Id. But instead of the doctrine of implied repeal, the Third Circuit gives effect to its IOPs in a situation of precedential conflict – since the IOPs forbid what Fosamax sought to do, which was to ignore prior holdings of precedential Third Circuit opinions.
Pardini was followed in United States v. Joseph, 730 F.3d 336 (3d Cir. 2013), where later “statements suggesting otherwise” in Third Circuit...
