Legal News

Federal Pre-emption ? Seventh and Tenth Amendments Be Damned

By Brian Harris

By James R. Ronca and Adrianne Walvoord
Special to the Legal

Pre-emption is an arcane legal term that has been enjoying more press time than one might expect. It encompasses the decades-long battle between manufacturers and consumers with significance in everyday life that is often misunderstood and underestimated. Simply, pre-emption prevents injured victims from suing a manufacturer. And, once again, as the U.S.  Supreme Court starts its 2010-11 term, pre-emption is a hot issue -- but is it a concept supported by liberals and despised by conservatives -- or should it be hated by both sides?

This term, the Supreme Court will decide the extent to which federal statutes prohibit plaintiffs from suing manufactures for fraud, defective design, failure to warn, and other claims arising under state common law. 

In 2008 and 2009, the Supreme Court decided preemption issues in the pharmaceutical and medical device worlds and came to conflicting conclusions.  In Wyeth v. Levine, the court held the FDA?s approval of warning labels for prescription drugs does not pre-empt state lawsuits for "negligent failure to warn."

Conversely, in Riegel v. Medtronic, the Supreme Court made it harder for consumers to sue manufacturers of certain medical devices approved by the FDA in ruling that many state common law claims are pre-empted by federal law.

For the 2010-11 term, the Supreme Court has accepted four pre-emption challenges, including two tort cases, Williamson v. Mazda Motor, (auto safety standards) and Bruesewitz v. Wyeth, (National Childhood Vaccine Injury Act).

We will be following the Supreme Court tort law pre-emption decisions, as well as the FDA?s issuance of warnings and recalls in the coming months, as these will greatly influence consumers? claims.

Libertarians, tea party activists and ?strict constructionists" are fond of saying that the constitution should be followed, specifically, word-for-word, as the founders intended. Well what could be more specific than this: ?In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.?

The Tenth Amendment reserved to the states all powers not delegated to the federal government.
It seems the intent is clear. So liberals, who favor pro consumer issues, and conservatives, who favor strict construction, should be in agreement in condemning pre-emption. Let?s hope the Supreme Court sees it the same way.

James R. Ronca and Adrianne Walvoord are attorneys with Anapol Schwartz Weiss Cohan Feldman & Smalley in Philadelphia.

Full post as published by The Legal Intelligencer Blog on October 28, 2010 (boomark / email).