Despite the close case for certiorari, the Supreme Court has agreed to hear the Fosamax case.
The grant of certiorari comes on the heels of Justice Anthony Kennedy's retirement announcement, and was likely one of his last votes while an active member of the Court. In a typical preemption case, Justice Kennedy's retirement would be significant, as preemption cases often split along perceived ideological lines.
But the Fosamax case could be different from the typical preemption case because it presents structural questions of law vs. fact and judge vs. jury that transcend the substantive policy issues that often drive preemption decisions. Because of these structural questions, at least some justices who are typically "anti-preemption" may be likely to join a decision holding that Wyeth preemption is a question of law that a judge must decide.
That said, if the Court does vote on the merits of the preemption dispute, Justice Kennedy's retirement could have a significant impact on the case in several ways. First, should a replacement not be confirmed by the fall, Fosamax might be heard by only seven justices, due to Justice Alito's recusal. (This is an unlikely event, given of the filibuster for Supreme Court appointments). Even if a new justice is confirmed before Fosamax is heard, at most an eight-justice Court will determine this key preemption issue. As discussed above, the Court's last decision on FDCA preemption was in Wyeth. That case was decided 6-3, with Justice Kennedy voting with the four more liberal justices at the time (Breyer, Ginsburg, Souter, and Stevens), in an opinion by Justice Stevens. Justice Thomas only concurred in the judgment, but not the opinion.
Thus, with Justice Alito unable to participate, even assuming there is a new justice confirmed in time to participate, it is possible that the result could be a plurality decision, which would leave the Third Circuit's decision standing.
In any event, the structural issues that permeate the Fosamax case make it more likely that the Court took the case to decide those issues, rather than the substantive preemption issues. The changes in the Court's composition for this case could have less effect on the outcome than it would have on a case that cleanly presented the preemption issues in Wyeth.
All in all, this will be a closely watched case with significant ramifications for FDCA litigation.
Learn more by contacting any of the authors, and see our earlier alert, In re Fosamax:Solicitor General recommends US Supreme Court review impossibility-preemption defense.