                                                                   FILED
                                                       United States Court of Appeals
                                                               Tenth Circuit

                                                               June 2, 2010
                                          PUBLISH          Elisabeth A. Shumaker
                                                               Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                     TENTH CIRCUIT



 ANNABEL DOBBS,

                Plaintiff-Appellant,
 v.                                                  No. 08-6018
 WYETH PHARMACEUTICALS,

                Defendant-Appellee.


 --------------------------------------

 PHARMACEUTICAL RESEARCH
 AND MANUFACTURERS OF
 AMERICA; PRODUCT LIABILITY
 ADVISORY COUNCIL, INC.;
 CHAMBER OF COMMERCE OF
 THE UNITED STATES OF
 AMERICA,

               Amici Curiae.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                       (NO. 5:04-CV-01762-D)


David Charles Frederick, Kellogg, Huber, Hansen, Todd, Evans & Figel,
P.L.L.C., Washington, D.C. (Arnold Anderson Vickery, Vickery, Waldner &
Mallia, L.L.P., Houston, TX and Earl Landers Vickery, Austin, TX, with him on
the briefs), for Plaintiff-Appellant.

Malcolm Edward Wheeler, Wheeler Trigg O’Donnell, L.L.P., Denver, CO (Mark
Herrmann, Jones Day, Chicago, IL; Thomas G. Wolfe and Douglas M. Todd,
Phillips, McFall, McCaffrey, McVay & Murrah, P.C., Oklahoma City, OK; and
David Booth Alden, Jones Day, Cleveland, OH, with him on the brief), for
Defendant-Appellee.

Robert A. Long, Jr., Michael X. Imbroscio, Paul W. Schmidt, and Erika F.
Lietzan, Covington & Burling, L.L.P., Washington, D.C., filed an amicus curiae
brief for the Pharmaceutical Research and Manufacturers of America in support of
Defendant-Appellee.

Hugh F. Young, Jr., Product Liability Advisory Council, Inc., Reston VA;
Kenneth S. Geller and David M. Gossett, Mayer Brown, L.L.P., Washington,
D.C.; and Robin S. Conrad and Amar D. Sarwal, National Chamber Litigation
Center, Inc., Washington D.C., filed an amicus curiae brief for the Product
Liability Advisory Council, Inc. and Chamber of Commerce of the United States
of America in support of Defendant-Appellee.


Before BRISCOE, Chief Judge, and HENRY and HARTZ, Circuit Judges.


HENRY, Circuit Judge.


      Annabel Dobbs has alleged that Wyeth Pharmaceuticals failed to

adequately label its antidepressant Effexor to warn of suicide risk, and that this

failure to warn caused her husband’s 2002 suicide while he was taking Effexor.

The district court granted partial summary judgment to Wyeth, holding that Ms.

Dobbs’s failure to warn claim against Wyeth was preempted by federal law.

After the district court’s decision, the Supreme Court established a new standard

for a federal preemption defense against a failure to warn claim, holding that the

pharmaceutical company must demonstrate “clear evidence” that the Food and

Drug Administration would have rejected a label change had the pharmaceutical


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company unilaterally strengthened its drug’s warning label. See Wyeth v. Levine,

129 S. Ct. 1187, 1198 (2009). Accordingly, we must VACATE the district

court’s grant of partial summary judgment to Wyeth and REMAND the case to the

district court. On remand, the district court should first afford the parties the

opportunity to submit additional evidence. Then, the district court should

reconsider the preemption issue in light of Levine’s new “clear evidence”

standard.




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