In an extraordinary series of blog posts, apparently intended to persuade the Supreme Court to grant certiorari, a prominent local large-firm partner has described the recent Third Circuit Fosamax decision as “folly,” “pure hogwash,” “very unsound and unwise,” “clearly wrong and clearly pernicious,” “the mess made by the Third Circuit,” “truly bizarre,” “such an obvious, pernicious error,” “ridiculously unjust,” an “abomination,” “especially crazy,” and “even crazier” than another federal-court ruling that was “based on crazy reasoning.”
The partner also said the ruling “turns on dithering,” “reaches a high-water mark” among “rotten preemption decisions,” and “wrecked the law on preemption.” And, while I’m not certain, I think he even implies that the Third Circuit acted in bad faith: he said the opinion “twisted” precedent and “apparently works doctrinal wonders,” and “the Third Circuit had done its best … to make it impossible to get summary judgment on preemption.”
[UPDATE: The post’s author has sent me a gracious note in which he emphasizes that, while he criticized the Third Circuit’s reasoning, he never meant to accuse the court of bad faith.]
The author of the posts is acclaimed Reed Smith partner and Penn Law lecturer Stephen J. McConnell, and these posts, which appeared on the Drug and Device Law blog (“The definitive source for intelligent commentary on the law that matters for drug and device cases”), are here, here, and here.
[UPDATE: Not only was the Fosamax panel (Fuentes, Chagares, and Restrepo) unanimous, but the court denied the petition for rehearing en banc without recorded dissent.]
But, good golly. Is that parade of invective wise? Effective? Appropriate?
Not in my view.