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# Case Highlights SCOTUS Preemption Views: Attorney
- URL: https://www.fdaweb.com/case-highlights-scotus-preemption-views-attorney/
- Published: 2019-07-24T12:00:00.000Z
- Updated: 2026-09-15T01:39:58.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5144604

Loyola Law School professor **Adam Zimmerman** says the Supreme Court decision in *Merck v. Albrecht* demonstrates how the issue of federal preemption transcends the typical conservative and liberal positions. Writing online in *The Regulatory Review*, Zimmerman [says](https://www.theregreview.org/2019/07/18/zimmerman-after-merck-albrecht/?ref=fdaweb.com) *Albrecht* was a case of “impossibility preemption” in which the company said it could not comply with conflicting federal regulations and state tort laws over whether to warn about specific Fosamax side effects.

While a federal district court agreed with Merck, the 3rd Circuit Court of Appeals reversed the decision, saying that to find preemption, a jury needed to resolve complex factual issues over whether FDA really meant to stop Merck from warning plaintiffs about their risk of crumbling jaws and severe leg fractures.

“The Supreme Court reversed,” Zimmerman writes, “by agreeing on a narrow, but possibly important, procedural question — that judges, not juries, get to decide that a federal law preempts a state tort suit. That decision alone could offer a limited procedural win for defendants hoping to dismiss cases early on in the litigation.”

He spends much of his article laying out the positions taken by various justices in their opinions on *Albrecht*, noting that they did not agree on the standard for proving impossibility preemption.

“Like other preemption cases this term,” Zimmerman concludes, “*Albrecht* appears to have scrambled the divide between conservatives and liberals on the court, creating new bedfellows, based on their divergent views of federal power, administrative expertise, and the role our civil justice system plays in prompting informed regulation.”