SUPREMES ONLY (and the 11th) TODAY

 

PREEMPTION

Mut. Pharm. Co. v. Bartlett, 2013 U.S. LEXIS 4702 (U.S. June 24, 2013) reiterates that the Supremacy Clause dictates that state laws that conflict with federal law are “without effect.” Even in the absence of an express pre-emption provision, state laws may be impliedly pre-empted where it is “impossible for a private party to comply with both state and federal requirements.”  In the instant case, it was impossible for Mutual to comply with both its state-law duty to strengthen the warnings on the drug’s label and its federal-law duty not to alter the drug’s label. Accordingly, the state law was pre-empted.

http://www.supremecourt.gov/opinions/12pdf/12-142_8njq.pdf

 

Guarino v. Wyeth, LLC, 2013 U.S. App. LEXIS 12966 (11th Cir. Fla. June 25, 2013) also involved a generic drug.  The court affirmed the dismissal of claims against the brand-name manufacturers of a prescription drug, and summary judgment in favor of  the manufacturer of its generic equivalent because the claims were preempted by federal law and that even if they were not preempted they would fail on the merits. They also concluded that Florida law recognizes no cause of action against the brand manufacturer of a drug when a plaintiff admits to having only taken the generic form of that drug. Applying PLIVA, Inc. v. Mensing,     U.S.    , 131 S. Ct. 2567, 2578, 180 L. Ed. 2d 580 (2011), the court concluded that the claims were preempted by federal law because generic manufacturers operate under a “duty of sameness,” which requires that their labels be at all times identical to the brand-name label of the same drug.  Because the claims were premised upon an allegedly inadequate warning, they were all preempted by federal law.

http://www.ca11.uscourts.gov/opinions/ops/201213263.pdf

 

CERTIORARI

Rodriguez v. Miami-Dade County, 2013 Fla. LEXIS 1314 (Fla. June 27, 2013) revisits the proper use of the writ of certiorari when a governmental entity raises sovereign immunity as a basis for a motion for summary judgment, which the trial court denied.  The plaintiff, a business owner, filed suit against Miami-Dade County, alleging that he was negligently shot by a police officer responding to a burglary alarm at his place of business.  The Third District concluded that review by certiorari was appropriate and that the County was entitled to sovereign immunity as a matter of law.  The Florida Supreme Court reversed stating that Miami-Dade County’s claim that it was entitled to sovereign immunity was not reviewable by a petition for writ of certiorari because there was no irreparable harm and because there were essential facts in dispute. It further held that the Third District erred in concluding that a “police emergency exception” conferred planning-level sovereign immunity on the County in this case.

http://www.floridasupremecourt.org/decisions/2013/sc11-1913.pdf

 

CONDITIONS PRECEDENT

Nunez v. Geico Gen. Ins. Co., 2013 Fla. LEXIS 1315 (Fla. June 27, 2013) answered in the negative a question certified from the Eleventh Circuit: whether, under FLA. STAT. § 627.736, an insurer can require an insured to attend an examination under oath as a condition precedent to recovery of personal injury protection benefits, citing Custer Medical Center v. United Automobile Insurance Co., 62 So. 3d 1086, 1091 (Fla. 2010).  A recent amendment to the statute provides otherwise, but did not take effect until January 1, 2013, and did not inform or control the disposition of the present case.

http://www.floridasupremecourt.org/decisions/2013/sc12-650.pdf