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In Merck Sharp & Dohme Corp. v. Albrecht, the Supreme Court has been asked to clarify the nature of the evidence defendants must produce to demonstrate that state law tort claims are preempted by federal law and whether such questions may be submitted to a jury. The Third Circuit rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that defendants must demonstrate that there is a “high probability” that the FDA would have rejected stronger labeling for a pharmaceutical product in order to invoke preemption. Doug Smith will attend the oral argument and then join us to discuss his thoughts on the proceedings.
Douglas G. Smith, P.C., Partner, Kirkland & Ellis LLP
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