Supreme Court hears oral arguments in drug labeling and foreclosure protections cases News
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Supreme Court hears oral arguments in drug labeling and foreclosure protections cases

The Supreme Court began its 2019 term Monday with oral arguments for two cases: Merck Sharp & Dohme Corp. v. Albrecht and Obduskey v. McCarthy & Holthus.

In Merck v. Albrecht, the justices must determine whether a state failure-to-warn law claim is pre-empted when the Food and Drug Administration (FDA) has rejected the drug manufacturer’s proposal to warn about the risk after being provided with the relevant scientific data, or whether such a case must go to a jury for conjecture as to why the FDA rejected the proposed warning.

The dispute arises out of over 1,000 patient claims that drug manufacturer Merck Corp. failed to warn of possible injury concerning the FDA-approved prescription osteoporosis drug Fosamax, which caused “atypical femoral fractures.” Merck argued Monday that because Merck informed the FDA of a “possible risk” and because its attempted revision of the label was denied, “failure to warn claims based on that risk are preempted as a matter of law.”

Respondents argued that the statute provides manufacturers maintain the primary responsibility for the content of labels.

“If the FDA rejects an inadequate warning, or is uncertain about whether and how to mandate a proper warning, those federal decisions do not make it impossible for Merck to comply with state law duties to market safe drugs,” counsel for the patients said.

Obduskey v. McCarthy concerns whether the Fair Debt Collection Practices Act (FDCPA) applies to non-judicial foreclosure proceedings. This question has divided the circuits. The case will turn on what the Court determines qualifies as a “debt collector” as it is defined in the Act.

Petitioner Obduskey argued that non-judicial foreclosure is a clear and obvious attempt to collect a debt, both as a “direct or indirect attempt to collect a consumer’s debt,” and therefore shall be included within both the definitions of and protections for debt collectors and the indebted respectively outlined in the FDCPA. 

Justice Ruth Bader Ginsberg was not on the bench on Monday recovering from surgery.

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