Monday, February 9, 2009

Will Chief Justice Roberts Recuse in Wyeth v. Levine?

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.


  1. I agree with Dianne that Justice Roberts should recuse himself. However, I think he should have done so when the case was brought before the Court. The Levine v Wyeth case has never been solely about Wyeth; it is about preemption, and it will affect every drug manufacturer.

    Regarding premption, what is good or bad for Wyeth, is good or bad for the industry. When Levine v Wyeth came before the court, Justice Roberts owned stock in an industry that he was to rule on. The conflict of interest has existed from the beginning, and Justice Roberts was obligated to recuse himself in the beginning.

    Selling his stock does not pull him from the mire that he is in, nor does it change what he should have done long ago.

  2. In case it's not clear, the Dianne post to which Joe refers is in the "Your Ideas Here" thread.

    In any event, both Joe and Dianne raise an interesting point. For what it's worth, recusal is a decision that SC Justices make on their own. The theory is that they will act with integrity given the role they are in.

    Will they? You be the judge (so to speak).

  3. Even if Justice Roberts sells his stock, he and others will likely still have a conflict of interest because of his statues as a patient.

    Justice Roberts suffered a seizure while vacationing in Maine several years ago. If reports are correct, it was his second. He is likely to require life long AED treatment to prevent a third episode. His (and others) health and well being are tied to the good faith and compliance of BOTH the brand manufacturer and, if applicable, the generic manufacturers of the AED drug that he is likely taking.

    Levine's attorney sued Wyeth, the brand name manufacturer of Phenergan. No generic manufacturers were named so we are all assuming that Levine was administered Weyth's Phenergan and not a generic version of promethazine. Hopefully, someone at Wyeth checked this before they paid these legal bills.

  4. Wow. Given how many folks are on meds for chronic something--Justice Scalia, for example, appears to be on something exuberant--it would be amazing if virtually all the Justices weren't on long-term meds.

    It's hard to imagine, therefore, this would be a reason for recusal. But wudda I know.

  5. Funny. When I first heard of this story, I did not think there was any chance of a recusal. But I have learned there is serious discussion around the blogosphere about it, In Vivo published a piece, the WSJ is on it, Wyeth is apparently concerned, and so on.

    I remain of the view that the chance of a recusal is slim to none. But the fact that the issue has evoked this much "noise" suggests how much the Levine case means to so many. Tea leaves have seismic repercussions.


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