University of Chicago Law Review

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When state and local governments sue prescription opioid manufacturers in state courts, the defendants often move for courts to stay or dismiss proceedings under the doctrine of primary jurisdiction. This common-law doctrine instructs courts to issue stays when waiting for a federal agency to address specific issues within the case would promote uniformity or allow the court to benefit from the agency’s expertise. In the prescription opioid cases, defendant manufacturers have argued that courts should stay proceedings until the completion of a new set of studies ordered by the Food and Drug Administration (FDA). State courts have divided on whether to issue stays under the primary jurisdiction doctrine in these cases. A case in California was under such a stay for four years.

This Comment examines the application of the primary jurisdiction doctrine in misleading advertising suits against prescription opioid manufacturers. The core principles of uniformity and expertise do not support issuing stays in these cases. Further, the particular scenario faced by state courts in these cases—requests for stays for the purpose of the production, rather than simply review, of new evidence— is not adequately addressed by concerns for uniformity or expertise. This Comment reframes these requests for stays as requests for courts to defer to the FDA on questions of evidentiary sufficiency. Because the FDA applies a higher standard of sufficiency to scientific questions than the tort system requires of plaintiffs, granting such deference has the effect of raising plaintiffs’ burden of proof. When deciding whether to grant stays under the primary jurisdiction doctrine for the purpose of waiting for the production of new scientific evidence, courts should consider only whether plaintiffs have otherwise met the burden of proof required of them at the given stage of the trial

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