FILED
United States Court of Appeals
Tenth Circuit
June 2, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ANNABEL DOBBS,
Plaintiff-Appellant,
v. No. 08-6018
WYETH PHARMACEUTICALS,
Defendant-Appellee.
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PHARMACEUTICAL RESEARCH
AND MANUFACTURERS OF
AMERICA; PRODUCT LIABILITY
ADVISORY COUNCIL, INC.;
CHAMBER OF COMMERCE OF
THE UNITED STATES OF
AMERICA,
Amici Curiae.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(NO. 5:04-CV-01762-D)
David Charles Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel,
P.L.L.C., Washington, D.C. (Arnold Anderson Vickery, Vickery, Waldner &
Mallia, L.L.P., Houston, TX and Earl Landers Vickery, Austin, TX, with him on
the briefs), for Plaintiff-Appellant.
Malcolm Edward Wheeler, Wheeler Trigg O’Donnell, L.L.P., Denver, CO (Mark
Herrmann, Jones Day, Chicago, IL; Thomas G. Wolfe and Douglas M. Todd,
Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, OK; and
David Booth Alden, Jones Day, Cleveland, OH, with him on the brief), for
Defendant-Appellee.
Robert A. Long, Jr., Michael X. Imbroscio, Paul W. Schmidt, and Erika F.
Lietzan, Covington & Burling, L.L.P., Washington, D.C., filed an amicus curiae
brief for the Pharmaceutical Research and Manufacturers of America in support of
Defendant-Appellee.
Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston VA;
Kenneth S. Geller and David M. Gossett, Mayer Brown, L.L.P., Washington,
D.C.; and Robin S. Conrad and Amar D. Sarwal, National Chamber Litigation
Center, Inc., Washington D.C., filed an amicus curiae brief for the Product
Liability Advisory Council, Inc. and Chamber of Commerce of the United States
of America in support of Defendant-Appellee.
Before BRISCOE, Chief Judge, and HENRY and HARTZ, Circuit Judges.
HENRY, Chief Judge.
Annabel Dobbs has alleged that Wyeth Pharmaceuticals failed to
adequately label its antidepressant Effexor to warn of suicide risk, and that this
failure to warn caused her husband’s 2002 suicide while he was taking Effexor.
The district court granted partial summary judgment to Wyeth, holding that Ms.
Dobbs’s failure to warn claim against Wyeth was preempted by federal law.
After the district court’s decision, the Supreme Court established a new standard
for a federal preemption defense against a failure to warn claim, holding that the
pharmaceutical company must demonstrate “clear evidence” that the Food and
Drug Administration would have rejected a label change had the pharmaceutical
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company unilaterally strengthened its drug’s warning label. See Wyeth v. Levine,
129 S. Ct. 1187, 1198 (2009). Accordingly, we must VACATE the district
court’s grant of partial summary judgment to Wyeth and REMAND the case to the
district court. On remand, the district court should first afford the parties the
opportunity to submit additional evidence. Then, the district court should
reconsider the preemption issue in light of Levine’s new “clear evidence”
standard.
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