For the third time in almost as many months, a federal judge has found that a plaintiff’s failure-to-warn claim against the maker of a selective serotonin reuptake inhibitor (SSRI) is not preempted by Food and Drug Administration regulations. In July, a federal judge in Indiana reconsidered his prior pro-preemption opinion and, upon review of FDA regulations, found in favor of the plaintiffs in Tucker v. SmithKline Beecham (2008 U.S. Dist. LEXIS 55919 [S.D. Ind.]). In August, an Eastern District of Pennsylvania judge rejected preemption in Knipe v. SmithKline Beecham (No. 06-3024, E.D. Pa.), a pediatric suicide case.

This time a federal judge in New Mexico, who has already disposed of Eli Lilly & Co.’s assertion of the learned intermediary defense, smacked down its argument that a man’s claims that Prozac’s suicide warning in 2003 was inadequate is not preempted by federal law. In a two-page ruling issued Oct. 2, Judge James O. Browning denied Lilly’s preemption motion and said an opinion detailing his decision will be forthcoming.

I’m intrigued to see what Judge Browning has to say, especially in light of rulings such as Colacicco v. Apotex 532 F.3d 253 [3rd Cir.]). But then again, the Tenth Circuit has yet to confront the preemption issue and appeals of pro-preemption rulings in two other SSRI cases are stayed pending the U.S. Supreme Court’s decision in Wyeth v. Levine.

The case was brought by Mark Rimbert, who claims his father’s use of Prozac caused him to kill his dog and wife in September 2003, shortly after his dosage was increased.

I have to say that this has been an interesting turn of events. What do you think?