wythe v. levine, and northwest austin municipal utility district v. holder. wythe had a predecessor the year before in regal v. medtmbing ronic. the court held 8-1 that the f.d.a.'s regime for medical devices preempted all state law, charging the device the f.d.a. allowed to be marketed caused physical injuries. i was the lone dissenter in that case. wythe v. levine involved drugs rather than devices and the absence of a preemption clause in that statute. tort suits under state law could be maintained, the court held 6-3, claims for inadequate warnings on drug labels. caperton v. a.t. mass see cole company came with a record resembling john grisham's novel "the appeal." there was a jury verdict in favor of caperton who charged the coal company's predatory practices drove him out of business. the west virginia supreme court, dividing 3-2, reversed the judgment for caperton. declared victory for the coal company. there was one problem. justice benjamin who cast the deciding vote in west virginia's high