Rehearing Rejected in Colacicco

Although coming as no big surprise, it is good to note that the 3d Circuit refused to revisit its recent decision that federal law preempts claims against antidepressant manufacturers for failing to warn of suicide-related risks (Colacicco v. Apotex Inc., 3d Cir., No. 06-3107, 5/5/08).


Readers of MassTortDefense know that plaintiff Colacicco filed suit after his wife allegedly committed suicide while under treatment with a generic equivalent to Paxil. The EDPA found preemption. However, the DNJ reached the opposite conclusion in a claim by plaintiff McNellis, whose father allegedly committed suicide while taking Zoloft. Both decisions were appealed, and the appeals were consolidated. The Third Circuit's decision was the first by a federal appeals court to address the preemptive effect of prescription drug law and regulation since the FDA’s clarified guidance on the issue.


Plaintiffs sought a rehearing. Only two judges on the panel, including Judge Thomas L. Ambro, who dissented from the panel’s preemption decision, would have granted the petition for rehearing en banc. (Judge Fisher also would have granted the petition for rehearing en banc.)

Many eyes turn now to Wyeth v. Levine, in the US Supreme Court, on the crucial issue of preemption. 

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