Preemption - Kent v. Warner Lambert affirmed

The US Supreme Court this morning affirmed the Second Circuit in the Kent v. Warner Lambert case (read here) in a per curium opinion.  The Chief Justice did not participate and the court was evenly divided 4 - 4.  Therefore, without an opinion, or a decision by the Supreme Court on the merits, the 2d Circuit's decision was affirmed. 

The issue in this case had to do with fraud on the FDA claims.  A Michigan product liability reform statute prohibits suits on approved drugs or devices unless there has been fraud on the FDA.  A fraud suit was brought and the defendants moved to dismiss on the grounds that such a claim is preempted based on an earlier decision of the US Supreme Court in Buckman v. Plaintiff's Legal Committee (read here).  The trial court agreed, but was reversed by the Second Circuit in an opinion that remains the law in the Second Circuit (read here).  The Sixth Circuit has addressed the same issue and come to a different conclusion (read here).

The Second Circuit held that because the fraud exception to immunity from suit was statutory, then there was no preemption.  The Sixth Circuit disagrees.

The Supreme Court was unable to reach a majority opinion to resolve the conflict, so the Second Circuit opinion was affirmed.

More analysis will follow later.