Preemption Preview: Q&A with Mark Herrmann, Jones Day - Pharmaceutical Executive


Preemption Preview: Q&A with Mark Herrmann, Jones Day

Pharmaceutical Executive

So what's the big picture for pharma?

In the short-term, Warner-Lambert against Kent is a lock. It will tell you whether or not these statutes that protect companies—unless they defrauded FDA—work. And if the Supreme Court goes in favor of industry, then you get some protection in eight states. And then the 600-pound gorilla is the next preemption decision; one of the cases that have not yet been accepted by the Supreme Court.

It sounds like preemption might be better public policy than reevaluating drugs on the jury level, state by state, over and over.

Having an expert agency that is adequately funded, competent, and determining the best-possible warning label—and then leaving that warning label alone—makes a whole lot of sense. Having lay juries that are sitting in the presence of a person who's hurt saying, "Well, you could've warned a little more this way or a little more that way," is not going to get you scientifically neutral and independent decisions on what the warnings should be.

Industry Insider Mark Herrmann is a partner in the Chicago office of Jones Day and the author of several books, including the indispensable Curmudgeon's Guide to Practicing Law. In partnership with James M. Beck of Dechert LLP, he is proprietor of the widely read product-liability blog Drug and Device Law (


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