The Third Circuit is having a bad year on preemption. Its decision in In re Fosamax Products Liab. Lit., 852 F.3d 268 (3rd Cir. 2017), in which it held that it is for juries and not judges to determine whether there is “clear evidence” sufficient to meet the Wyeth v. Levine, 555 U.S. 555 (2009), standard for preemption in a failure-to-warn case, was accepted for review by the Supreme Court and is widely expected to be reversed. And now the Circuit has injected needless confusion into the test for impossibility preemption set forth in Levine’s follow-up case, PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011). Mensing is familiar to many as the case that clarified the rule for determining when an impossible-to-resolve conflict between federal and state law preempts plaintiffs’ claims. If the change the plaintiff seeks is one that requires prior approval or federal permission, then the claim is preempted.

Read the blog post here.