Is Roberts Recusal Possible?
Anne PME, one of our crack field reporters, raises the above question, linked to a post that can be found at:
(But if you don't want to link, the whole post is in our "drop box" thread. Just don't tell anybody.)
The logic would be that, now that Pfizer and Wyeth are to be wed (or at least become domestic partners), would Roberts' holding of stock in Pfizer lead to his deciding to recuse in the Levine case. Some of you will recall he did so in Warner-Lambert v. Kent (Warner-Lambert, of course, now being part of Pfizer) leading to a 4-4 non-decision. Most folks believe that, had Roberts voted, it would have been on the side of WL, and thus have given the company a 5-4 victory. The Kent case concerned our own (not beloved by all) Michigan law which, on paper, has a "fraud exception" for preemption. WL claimed, however, that that exception was itself preempted, since--based on the Buckman precedent--only the FDA can find fraud against itself. (Even though it essentially never does in such contexts.) And, argued the FDA/DOJ in Kent, even if FDA _did_ find fraud, that should not open the door to private lawsuits.
Confused? The short lesson here is that, according to the FDA/DOJ, there are NO conditions--including FDA's finding that a company committed felony fraud in the pre- or post-approval processl--that would allow lawsuits against that or any other company. None. Nada. Zilch. That's broad preemption, folks. And that's why DDL and others are clear about their goal of prescription drug litigation "vanishing from the face of the earth" (DDL, 11/6/08). And next time you hear preemptors tell us differently--and preemptors try to tell us differently almost every day--don't believe them.
In any event, I think it extremely unlikely Justice Roberts will recuse. As the article points out, a simple strategy would be simply to sell his Pfizer stock. Given the importance of Levine, that would seem his most likely course of action. It might also be argued that the new company--Pfyzeth--would not be the same as Pfizer. And/or that it will not exist until after a decision in Levine anyway.
Whatever. I say he sells the stock.