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Expert Analysis

Supreme Court Leans Toward Reversal In Merck V. Albrecht

By Ilana Hope Eisenstein and Ethan Townsend (January 25, 2019, 1:21 PM EST) -- On Jan. 7, 2019, the U.S. Supreme Court heard oral argument in Merck Sharp & Dohme Corp. v. Albrecht (In re Fosamax), a key Food Drug and Cosmetic Act preemption case that will inform the scope of federal preemption under the FDCA. The lower court took a narrow view of the impossibility preemption defense of state law failure-to-warn claims. The justices' questions at oral argument suggested that the court may reverse the lower court's decision, permitting pharmaceutical companies more arguments under the impossibility preemption doctrine....

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