The large shadow being cast by the Levine v. Wyeth case pending before the U.S. Supreme Court covers a multitude of issues in ongoing pharmaceutical cases.  One is the question whether to stay pending litigation until the Court reaches a decision. See Forst v. Smithkline Beecham Corp., 2008 WL 2337283 (E.D.Wis., 2008)(denying plaintiff’s opposed motion for stay); Horne v. Novartis Pharmaceuticals Corp., 2008 WL 1847077 (W.D.N.C. 2008)(denying parties’ Joint Motion to Stay Proceedings without prejudice to renewal of said motion after the completion of discovery).

Stay requests assume that defendant will file, or follow the filing of, a dispositive motion asserting that the Food, Drug, and Cosmetic Act, 21 U.S.C. § 301, et. seq., preempts plaintiffs’ state law claims that a prescription drug manufactured by defendant lacked adequate warnings. The argument would be that the Supreme Court’s decision in the Levine v. Wyeth case may have a potentially significant impact on the pending case. A stay may conserve defendant’s resources and avoid an expensive trial which would then need to be repeated following the Supreme Court’s ruling.

So why not file such a stay motion? Why might a defendant oppose one?

Putting aside those situations in which the preemption issue seems not central to the pertinent drug case, and putting aside the impossible to know for sure chance that the Supreme Court’s ruling will be narrow and have no direct impact on some cases, other potential issues exist that defendants need to contemplate.

One factor is that defendants may want and need to develop facts during discovery that support dispositive motions based on other, independent grounds. One example may be the learned intermediary doctrine. A stay may, in some cases, hamper the defendant’s ability to conduct the discovery necessary for developing motions on non-preemption issues, upon which Levine has no bearing. A stay might prevent the defendant from developing the record and preserving evidence.

It will thus be a weighing process, a cost/benefit analysis each defendant must make, factoring in the time and costs, status of the case, proximity of trial, relationship of the specific preemption issues to those before the Court, nature of the forum, etc.