Product liability drug case not preempted by FDC Act

On March 3, 2006, Judge Crabb in the Western District of Wisconsin denied the defendants’ motion to dismiss. Plaintiff contends he lost his sense of taste after taking Prilosec.

Judge Crabb ruled that plaintiff’s state common law claims are not preempted by FDA regulations. She found that FDA’s regulations are generally just minimum standards of conduct. Regarding a possible conflict with federal law, she found that “the mere fact that the FDA does not require a warning on a product label does not create a conflict.”

She also ruled that the court should not abstain from deciding the case on the ground that the case fit within FDA”s “Primary Jurisdiction.” Judge Crabb noted that “the FDA does not have authority to grant the compensatory or punitive damages sought by plaintiff.”