Tag Archives: Preemption

Sixth Circuit Clarifies Standard for Interlocutory Appeal Under 1292(b)

In Little v. Louisville Gas & Electric Co., decided with a companion case, the Sixth Circuit offered some pointers on discretionary interlocutory review under 28 U.S.C. 1292(b). The district court had declined to dismiss state claims as preempted but independently dismissed most of plaintiffs’ federal claims.  In certifying under 1292(b), the court certified “that portion” … Continue Reading

Girl Scouts v. Girl Scouts: ERISA Wins

In a lengthy opinion last week, the Sixth Circuit resolved an intra-Girl Scouts retirement plan dispute that began in 2005. In so doing, the appellate panel demonstrated the broad preemption powers of ERISA and clarified the law’s application to multiple-employer plans. The problems began when the Girl Scouts of the United States of America (GSUSA) … Continue Reading

Sixth Circuit May Spur Supreme Court to Decide Whether Clean Air Act Preempts State Law Nuisance Claims

The Supreme Court has held in Am. Elec. Power Co., Inc. v. Connecticut that the CAA preempts tort claims under federal common law and in International Paper Co. v. Ouellette  that the Clean Water Act does not preempt state common law claims under the law of the state that is the source of the alleged pollution.  … Continue Reading

The Sixth Circuit Applies Bartlett and Mensing to Preempt Claims Against Generic Drugmakers

It’s been more than two years since we reported on the appeal in the Darvocet MDL (In re: Darvocet, Darvon and Propoxyphene Products Liability Litigation, No. 11-md-2226-DCR, MDL 2226), which involves claims against generic manufacturers of a generic equivalent of the drug Darvon.  The biggest news is that the panel did not decide whether to … Continue Reading

Generic Drug Claims Completely Preemped under Mensing and Bartlett

In Strayhorn v. Wyeth Pharms., Inc., decided this Monday, the Sixth Circuit affirmed the complete dismissal of claims against makers of generic drugs under the Supreme Court’s decisions in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011), and Mutual Pharmaceutical Co. v. Bartlett, 133 S. Ct. 2466 (2013).  Judge Gilman’s opinion reads those cases as … Continue Reading

Widening A Circuit Split, The Sixth Circuit Expands Preemption For Fraud-On-The-FDA Claims

In Marsh v. Genetech, Inc., the Sixth Circuit held that clever pleading of state law fraud-on-the-FDA claims could not get around its precedent on preemption of those claims.  The plaintiff claimed that Genetech did not comply with the FDA’s reporting requirements about the dangerous side effects of its psoriasis drug Raptiva.  Genetech claimed immunity under Michigan’s … Continue Reading

Sixth Circuit to Consider Chrysler Dealers’ Appeal

In the aftermath of the 2009 bankruptcies of Chrysler LLC (“Old Chrysler”) and General Motors Corporation (“Old GM”), Congress enacted Section 747 of the Consolidated Appropriations Act of 2010, Pub. L. No. 111-117 (“Section 747”).  Section 747 grants certain arbitration rights to dealerships that had their sales and services agreements rejected or terminated in connection … Continue Reading

Sixth Circuit Reverses Dismissal of Class Suit on Motorcycle Helmets

In Fabian v. Fulmer Helmets, Inc. (6th Cir. 10-5009, Dec. 23, 2010) (PDF), the Sixth Circuit reversed dismissal by the trial court of a pre-certification, class-action lawsuit predicated on a motorcycle helmet manufacturer’s alleged misrepresentation of safety standards. In Fabian, the helmet model in question – AF-50 – had been tested by National Highway Traffic … Continue Reading


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 … Continue Reading

En Banc Watch: Wyeth Asks for Rehearing En Banc on the Sixth Circuit’s Preemption Decision

As we reported earlier, Wyeth v. Wimbush was one of the first cases interpreting the Supreme Court’s decision in Wyeth v. Levine, and the first to extend Levine beyond failure to warn claims.  Wyeth has now filed an en banc petition (pdf) challenging that decision.   Wyeth argues that the claim that it was negligent during the … Continue Reading

FDA Approval Does Not Preempt State Law Negligence Claims — Wimbush v. Wyeth

The Sixth Circuit has become the first circuit to weigh in on the scope of the Supreme Court’s recent decision on federal preemption in Wyeth v. Levine, 129 S. Ct. 1187 (2009).  Here’s the background:  Mary Buchanan began taking Wyeth’s prescription diet drug Redux in 1996.  She was diagnosed with primary pulmonary hypertension (“PPH”) in 2001 … Continue Reading