Preemption NOT Extended to Paxil Lawsuits, Judge Rules

Scott Kappes

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This week a Pennsylvania judge ruled that federal law cannot preempt a state product liability lawsuit regarding GlaxoSmithKline's antidepressant Paxil. The ruling was centered on the alleged failure of GSK to warn patients and healthcare professionals about an increased risk of suicide associated with the medication. Judge Allan L. Tereshko concluded that federal preemption does not prohibit plaintiffs from arguing that the drug manufacturer failed to fulfill its obligation to those taking the medication when it failed to warn of an increased risk of suicidal ideation and action that has been linked to the drug.

The defense argued that the plaintiffs should be precluded from making that argument in state court under implied conflict pre-emption, saying that allowing the state court action over the adequacy of the Paxil label would result in conflicts with the "FDA's exclusive authority to determine the content of the label," Tereshko said.

Tereshko cited the Federal, Food, Drug and Cosmetic Act's silence on the issue as reasoning for the no preemptive decision. He said that he does not believe that the intent of Congress was to extend federal preemption to lawsuits of this nature.

This decision will be ridiculed by defense attorneys and hailed as president by plaintiff's lawyers. This issue has been a hotbed for discussion in recent months, and even more so following the Supreme Court's recent decision to allow medical device lawsuits to be preempted under federal law.