One interesting aspect of the Supreme Court’s Wyeth decision is its refusal to defer to the FDA’s conclusion that state tort suits, of the sort at issue here, conflict with the FDA’s regulatory scheme. While the Court does not foreclose deferring to similar agency determinations in the future, Justice Stevens makes clear that it is for courts, not agencies, to determine whether such a conflict exists. While this might not matter much in the immediate future, as I doubt the Obama Administation will be all that aggressive in urging preemption, it will raise the bar for future, pro-preemption administrations.
Here is a portion of the relevant language in the opinion.
In prior cases, we have given