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Tuesday, February 10, 2009

Will Roberts Recuse Himself from Landmark Preemption Case?

Speculation has been heating up lately that Chief Justice John Roberts might recuse himself from Wyeth v. Levine, arguably this term’s most important consumer rights case. Following news that pharmaceutical giant Pfizer would be purchasing the similarly massive Wyeth, court watchers started to question whether the buy-out would have any effect on pending litigation that involved the companies – particularly Wyeth’s Supreme Court challenge to Diana Levine’s Vermont liability case.

It turns out that Chief Justice Roberts owns stock in Pfizer, the value of which might decrease if Wyeth were to lose its challenge. Because of this, Diana Levine’s lawyers have requested that he remove himself from the case. This request is hardly unusual. In May of last year, Chief Justice Roberts recused himself from deliberations in Warner-Lambert Co. v. Kent because he owned stock in the company -- also a pharmaceutical manufacturer. His colleague, Justice Samuel Alito, recused himself that same month in Exxon Shipping Co. v. Baker because he owned stock in the oil giant.

While no one knows if Chief Justice Roberts will chose to remove himself, his decision to do so would probably bode much better for Ms. Levine and supporters of corporate accountability. Still, there is no guarantee that even without the chief justice’s conservative vote Diana will prevail. Last year, the Supreme Court decided Riegel v. Medtronic, a case with similar implications, by a margin of 8-1.

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