The  Supreme Court is set for a somewhat early start for its January arguments session.  While the Supreme Court has yet to release its calendar for the March and April argument sessions, we do have some idea of the general numbers for the remainder of the term.  There will be ten new cases (and one reargument) in January, eight new cases in February, and up to nine in March.  There are still some opportunity to add cases to the April docket, but for now there are four additional cases that could be set for argument in April.

Starting with the rearument case for January, that case is a Takings Clause case.  In 1985, the U.S. Supreme Court essentially held that a person claiming an improper takings without adequate compensation had to pursue their claim for adequate compensation in state court.  Because every state provides a mechanism for litigating the adequacy of compensation, this requirement essentially eliminates the ability to raise the federal aspect of the claim in federal court.  Conservatives do not like this rule and have been questioning it since it was created.  This case was originally argued in front of an eight-justice court in October.  Then it got set for re-argument in January.  While the order scheduling the case for reargument includes the fig-leaf of requesting additional briefing on a point raised during the first argument, it doesn’t take a rocket scientist to guess that the justices were split 4-4 and that it is now up to Justice Kavanaugh to break the tie. 

Also up for argument in January is Merck.  As the party name should suggest, this case is about pharmaceuticals.  Federal law controls the contents of the warnings that a drug company must give about the side effects, but that law also requires the drug companies to provide adequate information to the FDA.  If the company complies with these rules and the FDA determines that the label need not warn about a potential side effect, then injured patients may not bring a cause of action based on the failure to warn.  The problem is that the FDA does not always provide a conclusive rejection of any warning and merely turns down the warning as drafted.   The injured patients are contending that the rejected warning was poorly drafted and that a properly drafted warrant might have been accepted.  As such, the company may not use the rejection of its warning to bar a claim based on a slightly different warning. Continue Reading...