Legal News

The Law Blog Legal Topic of the Day: Preemption

By Dan Slater

Whenever we think of preemption — the notion that federal laws or rulemaking can trump state tort law — we think of our old friend Peter Lattman, who really really seemed to like the topic.

So this post is for you, Peter. Or maybe the whole WSJ today should be devoted to you, given the attention paid to preemption. On A3, there’s a news story about how plaintiffs’ lawyers are girding for the upcoming Supreme Court battle in Wyeth v. Levine, which is to be heard November 3. That case is about preemption — specifically, whether, despite a state court verdict that Wyeth hadn’t sufficiently warned of dangers related to anti-nausea drug, the company is protected because the FDA approved its label.

The WSJ reports that trial lawyers are so concerned about the case that in April they quietly pushed out Public Citizen, the advocacy group founded by Ralph Nader, as the attorneys for the plaintiff — a guitarist who lost her arm to gangrene after receiving a shot to treat a migraine — and replaced them with a legal team led by Scotus litigator David Frederick. The fallback plan for trial lawyers, should they lose the High Court case, is to persuade Congress and the White House to pass laws guaranteeing the right to sue.

Now flip to A16, where you’ll find an editorial board piece entitled “Devices for Lawyers,” that, not surprisingly, has a different view than the plaintiffs’ bar. Explaining preemption, the ed board observes: “If a product has passed FDA scrutiny . . . tort lawyers in Mississippi or Delaware have less legal room to gin up their own case against the manufacturer using state liability laws.”

And then, working up their ire, the ed board writes: “The FDA approval process is infamously labyrinthine, requiring years and tens of millions of dollars in investment to prove a device is safe and effective. If Democrats want tort lawyers and juries of laymen to be the ultimate arbiters of new devices, then they should do away with the FDA entirely and go to an Underwriters Laboratory system that gets devices to patients more rapidly. Instead, they want it both ways — agonizingly slow device approvals and open tort season after the fact.”

Full post as published by Law Blog - WSJ.com on August 13, 2008 (boomark / email).