In Desiano v. Warner-Lambert, the U.S. Second Circuit Court of Appeals refused to apply Federal Preemption under Buckman with respect to product liability claims under Michigan Law, which provides that a pharmaceutical manufacturer can escape liability where the drug is approved by the FDA, unless the defendant withheld or misrepresented material information that would have prevented approval. In a one-sentence per curiam, the U.S. Supreme Court said: “The judgment is affirmed by an equally divided Court.” (Chief Justice Roberts took no part in the decision.) See Warner-Lambert v. Kent, 128 S.Ct. 1168 (2008).
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