Dobbs v. Wyeth Pharmaceuticals

606 F.3d 1269, 2010 U.S. App. LEXIS 11134, 2010 WL 2179290

Opinion

HENRY, Circuit Judge.

Annabel Dobbs has alleged that Wyeth Pharmaceuticals failed to adequately label its antidepressant Effexor to warn of suicide risk, and that this failure to warn caused her husband’s 2002 suicide while he was taking Effexor. The district court granted partial summary judgment to Wyeth, holding that Ms. Dobbs’s failure to warn claim against Wyeth was preempted by federal law. After the district court’s decision, the Supreme Court established a new standard for a federal preemption defense against a failure to warn claim, holding that the pharmaceutical company must demonstrate “clear evidence” that the Food and Drug Administration would have rejected a label change had the pharmaceutical company unilaterally strengthened its drug’s warning label. See Wyeth v. Levine, — U.S. -, 129 S.Ct. 1187, 1198, 173 L.Ed.2d 51 (2009). Accordingly, we must VACATE the district court’s grant of partial summary judgment to Wyeth and REMAND the case to the dis trict court. On remand, the district court should first afford the parties the opportunity to submit additional evidence. Then, the district court should reconsider the preemption issue in light of Levine's new “clear evidence” standard.