OT 2012 in the Supreme Court featured a total of five (maybe, five-and-a-half) bioscience cases: Bowman v. Monsanto (seed patenting); Mutual Pharma v. Bartlett (generic drug tort liability); FTC v. Actavis (pay-to-delay drug settlements); Maryland v. King(DNA collection of arrestees); and AMP v. Myriad Genetics (gene patenting). You can hear CLB’s podcast wrap-up of those decisions here.
But as Autumn comes and the leaves turn and Fall–well, in places other than evergreen Stanford, California–the Supreme Court is busy working on a new list of cases to hear for OT 2013. (At least until Friday, when it runs out of money.) And so–even though it’s ridiculously early to start counting these things–we thought it would be a good feature for CLB to update you on any bioscience cases the Court is slated to hear this term. All (maybe) three of them:
On. Oct. 16, the Court will hear Kansas v. Cheever, a criminal case slated to address whether a defense that focused on the neurological effects of the defendant’s habitual methamphetamine use counted as a “mental disease or defect” that allowed the trial court to order a psychiatric evaluation, otherwise in contravention of the Fifth Amendment’s protection against self incrimination. In other words–does, as a legal matter, smokin’ dat ice make you insane in the membrane?
On Nov. 12, the Court will hear a criminal case, Burrage v. United States, on whether one can be convicted for “distributing heroin causing death,” under 21 U.S.C. § 841, if the cause of death was listed as “mixed drug intoxication.” This may seem like a run-of-the-mill criminal procedure issue on just how “proximate,” i.e., reasonably foreseeable, proximate cause needs to be. But, as noted by the government, the coroner’s report in the underlying criminal trial focused on the particular pharmacologic breakdown of heroin in the victim’s bloodstream. See Gov’t Br. at 4. If the coroner was wrong–or if the coroner’s opinion was uncertain–that may favor the petitioner-defendant. Frankly, it’s unclear how much this will play into the Court’s decision, but it’s something to watch out for.
Date uncertain: Cline v. Oklahoma Coalition for Reproductive Justice, on whether a state statute can condition the use of an abortifacient on-label, even if typical medical practice is to use it off-label, is still winding its way through the Oklahoma Supreme Court. Hank’s post about that case can be found here–with a correction here.
That’s it so far! We’ll keep you posted. You know, if the Supreme Court can get paid and get back to work any time soon.
Jacob S. Sherkow