New Clarity on "Clear Evidence": Adjudication of Implied Preemption Defenses in Prescription Drug Product Liability Cases

In Merck Sharp & Dohme, Inc. v. Albrecht, 2019 WL 2166393 (U.S. May 20, 2019), the Supreme Court answered two significant questions governing the litigation of the implied federal preemption defense in prescription drug product liability cases: (1) procedurally, the ultimate determination of whether a claim is preempted is to be answered by the court, not the jury, and (2) substantively, the question the court must ultimately decide is simply “whether the relevant federal and state law…

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