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A turning of the tide for preemption: new developments in preemption law bode well for plaintiffs in products cases.

Article Excerpt
It's hard to imagine a drier-sounding subject than federal preemption. Yet it s even harder to imagine a doctrine that poses a bigger threat to access to justice in this country. When successful, the federal preemption defense can completely wipe out your clients' rights to obtain compensation for their injuries, regardless of the extent of the defendants' wrongdoing. This makes federal preemption very popular with defendants, who raise it every chance they get.

The preemption defense is particularly widespread in products liability litigation, where it has been asserted in a variety of cases involving products such as automobiles, flammable fabrics, disposable lighters, children's toys, medical devices, and boat engines. Over the past 20 years, preemption has been raised in all of these areas, wiping out tort liability in a number of cases.

Recently, however, help has come from the most useful of sources: the U.S. Supreme Court. The Court's two latest cases in the products area--Sprietsma v. Mercury Marine (1) and Bates v. Dow Agro-Sciences LLC (2)--both yielded sweeping antipreemption rulings, shocking many spectators on the defense side and delighting victims' rights advocates.

Preemption overview

The basics. Federal preemption is rooted in the Supremacy Clause of Article VI of the Constitution, which provides that the laws of the United States are "the supreme law of the land ... any thing in the Constitution or laws of any state to the contrary notwithstanding." In practical terms, this means that Congress, subject to the limits the Constitution imposes on its power, has authority to wipe out--or preempt--any state law that conflicts with federal law.

Generally speaking, Congress may preempt state law in any of three ways. (3) The first is by express preemption. Congress can explicitly state its intention to preempt areas of state law. (4) By the same token, Congress may also explicitly state its intention not to preempt areas of state law by including a "savings clause" expressly limiting a statute's preemptive effect. (5)

The second way is implied conflict preemption. If Congress's intent is not clear from its express language, an intention to preempt state law may be implied if the state law "actually conflicts with the federal law," either because it would be "impossible for a private party to comply with both" (6) or because the state law "stands as an obstacle to the accomplishment and execution of the full purposes of Congress." (7)

Third, under the doctrine of field preemption--which can be either express or implied--Congress may enact legislation that is so comprehensive in scope that it occupies an entire field of regulation and either explicitly or impliedly leaves no room for the states to regulate. (8)

The upshot. Those are the basics. Now why does preemption matter? Because it does not merely limit a victim's right to recovery--it abolishes it. Since preemption is a complete defense to liability involving pure questions of law, when the argument prevails, the case is over and everyone goes home, regardless of the evidence of the defendant's outrageous conduct. Federal preemption can thus wipe out entire areas of liability under state law.

Not only does preemption deprive victims of compensation, but it also threatens the health and safety of every American. When state law liability is wiped out, manufacturers lose incentives to make their products safer than federal regulations require. Federal regulations that trigger preemption are often little help to injured consumers, since regulations tend to lag far behind the best available safety technology--or even fall short of what a jury in a tort suit would deem reasonably necessary in a given case. This is not surprising, since federal agencies are slow to act and may be influenced by the industries they purport to regulate.

The upshot is that the federal government's safety standards often fail to adequately protect consumers from dangerous products. Yet, manufacturers argue that their compliance with minimum federal standards should allow them to avoid liability under state tort law. Too often, courts agree.

The sad irony. The sad irony is that Congress rarely intends federal law to have this kind of effect. The language and history of the consumer protection statutes at...

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