As reported previously, the Sixth Circuit in Wimbush v. Wyeth become the first circuit to weigh in on the scope of the Supreme Court’s recent decision on federal preemption (Wyeth v. Levine ), by holding that FDA approval does not preempt state law negligence claims. Wyeth petitioned for rehearing en banc, but on October 14th the Court denied its petition, with no judge voting for rehearing en banc (PDF). It remains to be seen whether other Circuits will follow the Sixth Circuit’s lead in extending Wyeth v. Levine beyond the context of failure to warn claims.
