very well well at the outset we always say we're going to give it say fifteen minutes but we've never really hope to do so but i assume that you'll want to reserve some of your time for dogs right right right  see the makeup and it can't change the warning well you're out of that that makes it preempted or a generic maker because of their requirement that they be the same  the manufacturing that is correct but if i may be heard there are only three conceivable options for a drug manufacturer when it is a generic reforging there are only three conceivable court which is exactly the argument being made here is where a liability of imposed were failing in a reasonably dangerous they can't be approved through design change  option of act defeated a claim of incompatibility in possibility preemption would be all that meaning and in fact the example that just the legal gave during the argument when he interpret that footnote if there's work where it says we do not address state design defect claims that parallel the federal from the market when it is dangerous to help even if used in that dosage the manner or with frequency and duration prescribed for testing and then the court keep going on court with addressing there with an argument made by the solicitor general in the partly case in which the court the solicitor general with thing led up a film your honor that there is a jurisdiction in this country that plaintiffs in their complaint had shown that there with evidence that the f d a did not have back then the solicitor general with arguing that there might be call for a claim and the supreme court's role that a private right of action or not well i mean the solicitor general's perspective i think it would take the supreme court said we don't need to address that in the footnote because it's not relevant here is there anything that  t is that how they separate themselves from panel and and that the same in illinois in other words there is no illinois called the factions that said you can't sell a drug that unreasonably dangerous irrespective of the warnings of what it means to be unreasonably dangerous under illinois law if you don't have a proper warning but can a drug actually be reasonably dangerous free card list of the warnings isn't that really what happened with product in the united states is not appropriate at this done because the overall risk benefit profile remains favorable so they were saying and the plaintiffs the simply find now the second get the f during this period it's not appropriate to withdraw them right but it at some point after the fact and correct if it is that let's is that what you really think this case hinges upon is that that the drug became reasonably have survived if it alleged that the drug was always on recently dangerous that everyone already knew it was unreasonably dangerous no warning could really warning any drug can be dangerous but the way you measure whether the drug is a reasonably dangerous is looking at the warning but the second part which is the factual or it is the plaintiffs you know where or ledge in their complaint that there were facts that were not known to the f d a at the time the approval and at the time of the continuing decision in two thousand and nine to continue to direct the companies that they could britain in two thousand and nine six two thousand and six and though the f d a was very focused on this drug they knew that there had been questions raised about the things the profile of the drug and yet they had made the determination as there is no viable claim for any of the common law because of the vaccine for negligence designed fraud because earl of these would have required i liability against the company for continuing to market a drug even a drug that is alleged to be dangerous if they can't change the warnings and they can't shut up which would be acting different if it  allegations in an operative complaint that there were moved back not before the supreme court then you would have a question that the supreme court reserved our check made me if i just may finish look at is the one i bought in and that it really is there any question here that we should be answering as to whether or not there's an exception that exists for absolute liability claims no it doesn't exist anywhere in the united are so that would be an advisory opinion whether this court is being asked to do is if not render an advisory thank you let's take a look at the facts alleged here and look at the precedent that applies to  that's not it doesn't conflict with the supremacy well your honor that is the argument that with made in yes and i would like my major to give you the example that justice ali gained because it it really proves the point he said the plane made that let's just assume that if they say you are were wired to drive on the left side of the road and the federal government says you're required to drive on the right show and you can't change the label and you can't change the design and the state is there for thing if you say continue to sell it we're going to hold you liable because you may freely take the drug off the market that that's not an answer preemption that those claims are still preempted and your would you say that this really is a stop selling complaint if they are they're suggesting here simply that they shouldn't stop selling but you're saying if you did that just so dangerous it should have been on the market even during that window when the f d a said it should have been on the market which is when our client with taking the drug we thing they did that really true in light of what the f d a actually he warning on some yes drugs that is put potentially give rise to suicidal tendencies and then with the drug six months before the yes he made that change you could say well clearly we know now that the drug should have had that way but the whole point is we we don't second guess as a matter of state law the f d a they've given efficacy determinations and there that the essence of the preemption holding defect but under federal law you can't change the design or you want a stronger label but under federal law they can't change the label so therefore it's impossible to do anything but they're they're saying that they're kind of and they an exception to their claim is an exception to bar this rejection of of the stop selling theory because they're not saying the label should have been strengthened and they're not saying that the design should have been changed they're not saying either of those things because they're saying i understanding is that there was no design change and no label change that could have made this product safe and therefore it therefore it's not a question of you know running up against the prohibition of changing the change the label and we should change to the why they're saying we should have taken it off the market and nothing really am taking it off the market because it's not impossible for us to hit it off the market and what the court said is at least leaving the market does not defeat a claim of the possibility they have interpreted the word in possibility to mean more than just is it physically impossible because while it may be that would be a very different story what page where were you citing when you said that the supreme court actually addressed that we hit the possibility if you don't if yes if you game down enough days or a week to go before the judge rendered her opinion here and the plaintiff that basically made their argument that the first with correct and that thought about the amendment correct the amendment did come in and well it came before that but that's true it did come before but they did not consider because it was not include an express preemption provision congress could have put that in there good that they could have then the supreme court has made very clear that the presence or the absence of an express preemption provision have no bearing on conflict preemption information that they get you did not have access to the f d a had access to all of the adverse report they had access to what the european regulatory agency with doing that is that only in the case in which state or federal law state or federal law requires a product be pulled from the market we're reading from i'm reading from a federal reporter in page two four seven seven foot no free claim is that there are no remedial measures that would satisfy the plaintiff because the drug is just inherently dangerous and can't be made safe and therefore there isn't an impossibility  that he put on their opinion he said he said we are are are holding is limited this is this whole thing that we are writing today and remember he's answering the hammering that he's getting from sort of my alleges what you believe you're alleging and that is that we're not asking for a change in the how position we're not suggesting a warning would have assisted we're saying that this drug should never have been sold at any time  a case where the plate is asking to change the composition the answer would be no what's the point of us telling survive i mean otherwise what are we that that is true but in answering this question i think what this will do is clarify what i believe should have been self evident and what was evident in the first illinois case to address that issue but but evidently was not evident this trial judge which is that the response all of jeff take the drug off the market is not a sufficient answer to preemption because f the supreme court said that incoherent because well in every instance in which the court has found preemption the direct conflict between federal and state law could easily have what is this rare case which state or federal law actually requires a product to be all over the park well if you because is there any doubt here that it's a product that is unreasonably dangerous in other words it doesn't matter what the warnings say doesn't matter if the opposition is completely not really significant but i can't make it say i think the rear we want  in other words it not the fish and to judge a lead new information you have the legs new information against a state law that is an absolute like bloody regime and with out going back to the legislature here here is it falls right in this paragraph and what they're saying is hey there's no safe harbor it's you can't you can always get away with with this it's just when you know we would have been but they're still not saying that deaths what should have been done they're not saying you should have changed the label but those things well i think what they're saying is that there was no label you could come up with there would it would have saved the plaintiff and therefore you should have pulled