Home | Business News | Browse by Publication | T | Trial

The perils of preemption: the Bush administration has strongly advocated preemption of state common law tort claims, seeking to deny civil justice to plaintiffs who are harmed by federally regulated products and activities. What should the next administration and Congress do to turn around those efforts?

Article Excerpt
Hardly a week goes by without a report in the media of a new threat to public health and safety caused by corporate malfeasance. Consumers can no longer assume that the food they eat is free of deadly microorganisms, that the drugs they take are safe and effective, that the toys their children play with are not contaminated with toxic chemicals, or that the fires on their SUVs will not break apart when they are driving at high speeds.

This growing "accountability crisis" is the direct and predictable result of a decades-long coordinated effort by manufacturing companies--and their business-oriented allies in academia and think tanks--to shield corporate America from what they pejoratively characterize as "burdensome and unnecessary" regulatory responsibilities and "frivolous" common law tort liability. (1)

One important element of this initiative has been an intensive push by corporate defendants--and the Bush administration--to persuade federal courts that state common law tort claims are preempted by federal regulations. Frequently referred to as regulatory preemption, this legal strategy has the potential to decimate many important areas of traditional tort practice.

Despite a "presumption against preemption" that is supposed to guide the courts in "areas of traditional state regulation," (2) the federal courts have greatly expanded the range of federal programs that preempt state common law. They have accomplished this by interpreting the language of express preemption clauses broadly to encompass common law claims and by applying the highly discretionary obstacle preemption doctrine to find conflicts between state common law duties and federal regulatory policies. (3)

The Supreme Court's 1992 holding in Cipollone v. Liggett Group, Inc., that the word "requirement" in an express preemption clause includes state common law claims, took the plaintiff trial bar by surprise. (4) That surprise turned to chagrin with the Court ruling in Geier v. American Honda Motor Co. in 2000.

In Geier, the Court found that a plaintiff's run-of-the-mill products liability claim against an auto manufacturer posed an undue obstacle to attaining the policies implicit in the federal auto safety program, even though the statute involved contained an express preemption clause and a saving clause explicitly preserving state common law claims. (5)

Since then, corporate defendants have, with varying degrees of success, raised regulatory preemption as a defense to common law claims in hundreds of cases involving a wide variety of federally regulated products and activities, ranging from toys to train wrecks. (6) Defendants have even invoked regulatory preemption to avoid liability for defrauding the regulators administering the very federal programs that failed to protect injured plaintiffs. (7)

A change in posture

Historically, federal regulatory agencies maintained a policy of strict neutrality in these battles. (8) This has changed dramatically in recent years.

During his 2000 presidential campaign, George W. Bush complained that "vexatious litigation" was threatening the economic vitality of the American economy, and he promised to make tort "reform" a high priority in his presidency. (9) Once in the Oval Office, Bush appointed strong proponents of tort "reform" to key positions in the Department of Justice and the legal offices of many federal agencies. Although the administration's ambitious legislative initiatives made very little headway in Congress, its efforts to influence the courts toward preemption have been considerably more successful.

FDA labeling regulations. Under Chief Counsel Daniel Troy, a Washington, D.C., insider who devoted his private career to representing pharmaceutical companies and business-oriented nonprofit litigation groups, the FDA in 2003 for the first time began to advocate the dismissal of drug claims on pre emption grounds. (10) The agency attempted to solidify this radical policy reversal by adding preemption language to the preamble of its drug labeling regulations. (11)

Several federal district courts have deferred to the FDA's preemption position, (12) while others have rejected it. (13) One court adopted a middle ground, affording deference to the FDA's informal statements only to the extent that they have the "power to persuade." (14)...

View this article FREE - Now for a Limited Time, try Goliath Business News
Free for 3 Days!