Federal Court Rejects Lilly's Preemption Argument in Utah Zyprexa case

FYI

On Sept. 4, a federal court in Utah ruled against Eli Lilly which sought to
absolve itself of Zyprexa liability.
The State of Utah sued Eli Lily alleging that the State had paid for
inappropriate,
unnecessary and unauthorized off-label use of Zyprexa, and that it was
entitled to relief
including the future costs of care for Medicaid recipients allegedly harmed
by the drug.

Lilly invoked FDA's Preemption Rule which claims sole jurisdiction over drug
safety issues.
This gift to the pharmaceutical industry was crafted by FDA's chief counsel,
Daniel Troy,
before he went back to a law firm representing pharmaceutical companies.

In effect, FDA preemption would deny citizens the right to seek relief for
preventable harm
caused by manufacturers' failure to warn about serious adverse effects
linked to their
FDA-approved prescription drugs.

The court rejected Lilly's effort to remove the case from state court
jurisdiction
underscoring the court's "presumption against preemption." In an almost
conclusory fashion,
the Utah district court cited the following precedents:

1. Supreme Court Justice Scalia’s bon mot in Alexander v. Sandoval, 532 U.S.
275, 291 (2001), that “[a]gencies may play the sorcerer's apprentice but not
the sorcerer himself.”
(In Sandoval, Scalia was referring to agencies’ power to create a federal
cause of action;
here, the same metaphor is applied to agencies’ power to preempt state law.)

2. An earlier district court opinion from Louisiana which rejected FDA's
assertion of preemption:
“To take such drastic action based solely on a preamble inserted at the
eleventh hour and drafted by an agency without the express or implied
authority to abolish such remedies is Draconian and unacceptable.”

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