Merck Sharp & Dohme Corp. v. Albrecht
| Docket No. | Argument | Opinion | Vote | Author | Term |
|---|---|---|---|---|---|
| 17-290 | Jan 7, 2019 | May 20, 2019 | 9-0 | Breyer | OT 2018 |
Holding: "Clear evidence" that the Food and Drug Administration would not have approved a change to a drug"s label " thus pre-empting a state-law failure-to-warn claim " is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug"s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
Judgment: Vacated and remanded, 9-0, in an opinion by Justice Breyer on May 20, 2019. Justice Thomas filed a concurring opinion. Justice Alito filed an opinion concurring in the judgment, in which Chief Justice Roberts and Justice Kavanaugh joined.
SCOTUSblog Coverage
- Opinion analysis: Clarity on clear evidence of drug pre-emption? (Elizabeth McCuskey, May 21, 2019)
- Argument analysis: Gleaning the FDAs meaning for impossibility pre-emption (Elizabeth McCuskey, January 8, 2019)
- Argument preview: Revisiting impossibility pre-emption (Elizabeth McCuskey, January 2, 2019)
| Date | Proceedings and Orders |
|---|---|
| 06/23/2017 | Application (16A1264) to extend the time to file a petition for a writ of certiorari from July 23, 2017 to August 22, 2017, submitted to Justice Alito. |
| 06/27/2017 | Application (16A1264) granted by Justice Alito extending the time to file until August 22, 2017. |
| 08/22/2017 | Petition for a writ of certiorari filed. (Response due September 25, 2017) |
| 08/31/2017 | Waiver of right of respondents Affronti, Joanne, et al. to respond filed. |
| 09/11/2017 | Blanket Consent filed by Petitioner, Merck Sharp & Dohme Corp. on 09/12/2017 |
| 09/19/2017 | Waiver of right of respondents Esther Parker & Pamela Paralikis to respond filed. |
| 09/20/2017 | Blanket Consent filed by Respondents, Albrecht, Doris, et al. on 09/21/2017 |
| 09/21/2017 | Order extending time to file response to petition to and including October 25, 2017, for all respondents. |
| 09/22/2017 | Because Justice Alito now realizes that he should have recused himself from consideration of this application, the order of June 27, 2017, is vacated. Pursuant to Rule 22.2, the application (16A1264) to extend the time to file a petition for a writ of certiorari from July 23, 2017 to August 22, 2017, has been submitted to Justice Sotomayor. |
| 09/22/2017 | Application (16A1264) granted by Justice Sotomayor extending the time to file until August 22, 2017. (Justice Alito is recused) |
| 09/25/2017 | Brief amicus curiae of Pharmaceutical Research and Manufacturers of America filed. |
| 09/25/2017 | Brief amici curiae of Product Liability Adisory Council, Inc., et al. filed. |
| 10/25/2017 | Brief of respondents Doris Albrecht, et al. in opposition filed. |
| 11/08/2017 | DISTRIBUTED for Conference of 12/1/2017. |
| 11/08/2017 | Reply of petitioner Merck Sharp & Dohme Corp. filed. (Distributed) |
| 12/04/2017 | The Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Alito took no part in the consideration or decision of this petition. |
| 05/22/2018 | Brief amicus curiae of United States filed (to be corrected and reprinted). |
| 05/22/2018 | Brief amicus curiae of United States filed (Corrected brief received 5/29/18). |
| 06/05/2018 | DISTRIBUTED for Conference of 6/21/2018. |
| 06/05/2018 | Supplemental brief of respondents Doris Albrecht, et al. filed. (Distributed) |
| 06/07/2018 | Supplemental brief of petitioner Merck Sharp & Dohme Corp. filed. (Distributed) |
| 06/27/2018 | DISTRIBUTED for Conference of 6/27/2018. |
| 06/28/2018 | Petition GRANTED. Justice Alito took no part in the consideration or decision of this petition. |
| 07/27/2018 | Motion for an extension of time to file the opening briefs on the merits filed. |
| 07/27/2018 | Motion for an extension of time to file the opening briefs on the merits granted. The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 13, 2018. The time to file respondents' brief on the merits is extended to and including November 14, 2018. |
| 09/12/2018 | Blanket Consent filed by Respondents, Doris Albrecht, et al.. |
| 09/13/2018 | Joint appendix (2 volumes) filed. (Statement of costs filed) |
| 09/13/2018 | Brief of petitioner Merck Sharp & Dohme Corp. filed. |
| 09/17/2018 | Blanket Consent filed by Petitioner, Merck Sharp & Dohme Corp.. |
| 09/20/2018 | Brief amicus curiae of United States filed. |
| 09/20/2018 | Brief amicus curiae of Washington Legal Foundation filed. |
| 09/20/2018 | Brief amici curiae of Product Liability Adisory Council, Inc., et al. filed. |
| 09/20/2018 | Brief amici curiae of Pharmaceutical Research and Manufacturers of America, et al. filed. |
| 10/12/2018 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. |
| 10/26/2018 | Justice Alito is no longer recused in this case. |
| 11/14/2018 | Brief of respondents Doris Albrecht, et al. filed. |
| 11/21/2018 | Brief amici curiae of Tort Law Professors John C. P. Goldberg and Benjamin C. Zipursky filed. |
| 11/21/2018 | Brief amici curiae of MedShadow Foundation, et al. filed. |
| 11/21/2018 | Brief amici curiae of Public Law Scholars filed. |
| 11/21/2018 | Brief amici curiae of Commonwealth of Virginia, et al. filed. |
| 11/21/2018 | Brief amici curiae of Joseph Lane, M.D., and Vincent Vigorita, M.D. filed. |
| 11/21/2018 | Brief amicus curiae of The Cato Institute filed. |
| 11/21/2018 | Brief amicus curiae of Public Citizen filed. |
| 11/21/2018 | Brief amici curiae of Jerome P. Kassirer, M.D., et al. filed. |
| 11/21/2018 | Brief amicus curiae of American Association for Justice filed. |
| 11/28/2018 | SET FOR ARGUMENT ON Monday, January 7, 2019 |
| 11/30/2018 | CIRCULATED |
| 12/03/2018 | Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. |
| 12/11/2018 | Record requested from the U.S.C.A. 3rd Circuit. |
| 12/14/2018 | Reply of petitioner Merck Sharp & Dohme Corp. filed. (Distributed) |
| 12/18/2018 | Record received from the U.S.C.A. 3rd Circuit is electronic. |
| 12/18/2018 | Record from the U.S.D.C. District of New Jersey is electronic and located on PACER. |
| 01/07/2019 | Argued. For petitioner: Shay Dvoretzky, Washington, D. C.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondents: David C. Frederick, Washington, D. C. |
| 05/20/2019 | Judgment VACATED and case REMANDED. Breyer, J., delivered the opinion of the Court, in which Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch, JJ., joined. Thomas, J., filed a concurring opinion. Alito, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Kavanaugh, J., joined. |
| 06/21/2019 | JUDGMENT ISSUED. |