On May 20, 2019, the Supreme Court issued its opinion in
Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290 (May
20, 2019), a case that provided it the opportunity to clarify the
standard for the impossibility preemption defense in pharmaceutical
cases. While the ruling was unanimous and made clear that
preemption is a question for the judge—not the jury—to
decide, the Court put only a gloss on the "clear
evidence" standard of Wyeth v. Levine, 555 U.S. 555
(2009), and left it to the lower courts to grapple with the
application of that standard to the facts. Justice Alito's
concurring opinion, however, put the statutory framework and the
regulatory history of the case into greater context, suggesting
that the Third Circuit should find preemption on remand and
offering pharmaceutical defendants a roadmap for arguing the
preemption defense in future litigation.
