Today during arguments in Pliva, Inc. v. Mensing, Attorney Louis Bograd on behalf or Respondents ran out of time. How did he handle it? By asking to finish his point. The Chief let him finish his “sentence.” What did he do? Speak for another two long sentences (72 words)! Chief Justice Rehnquist would never have stood for such surplusage. Of course Nino got a quip in there.
I would like to make one final point, Your Honor. In Bates — and I apologize; we didn’t address this specifically in our briefs, because I didn’t notice it until later — the statutory scheme at issue in Bates, under FIFRA, was almost identical to the — I’m sorry. I see my time has expired. May I finish my point, Your Honor?CHIEF JUSTICE ROBERTS: You can finish your sentence.
JUSTICE SCALIA: Make it a long sentence, with a lot of “ands.”
MR. BOGRAD: There was no CBE equivalent in Bates in the — under the FIFRA statutory scheme, and yet this Court upheld against a motion to dismiss on preemption grounds a failure to warn claim, admittedly under an express preemption provision. This Court upheld a claim against a pesticide manufacturer even though the pesticide manufacturer could not have changed its warning without prior EPA approval, exactly the same situation that confronts the generics here.
Thank you, Your Honor.
CHIEF JUSTICE ROBERTS: Thank you, counsel.