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# Could SCOTUS Eliminate ‘Levine’?
- URL: https://www.fdaweb.com/could-scotus-eliminate-levine/
- Published: 2020-12-15T12:00:00.000Z
- Updated: 2026-09-14T16:40:13.000Z
- Author: David McFarland
- Tags: Drugs, #legacy-id-D5148304

Writing online for *Drug & Device Law*, attorneys **Dick Dean** and **Emmanuel Sanders** (Tucker Ellis) speculate whether recent changes in personnel on the Supreme Court could bring an end to *Wyeth v. Levine*, the case that held that a jury can second-guess whether an FDA-approved label is adequate. “It should first be noted,” the two [write](https://www.druganddevicelawblog.com/2020/12/guest-post-will-the-supreme-court-reverse-wyeth-v-levine.html?ref=fdaweb.com), “that there is little left of this decision given the fact that courts now determine the ‘newly acquired information’ and ‘clear evidence’ issues as a matter of law. But under *Levine* a jury still decides adequacy if there are any open issues after the aforementioned legal issues are adjudicated.”

In *Levine*, the attorneys write, justices Alito, Roberts, and Scalia dissented, finding that permitting juries to second-guess an FDA Warning decision would frustrate the purposes and objectives of FDA. This is known as the “obstacle preemption.”

For the future, the attorneys see justices Alito and Roberts as likely votes to overturn *Levine*, potentially joined by justices Gorsuch, Kavanaugh, and Barrett.