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Preemption, the Congressional maneuvers

Below we note today's Wall Street Journal article, "Plaintiffs' Lawyers Fight Restrictions On Product-Liability Suits," a good primer on the political and lobbying battles over preemption, i.e., federal regulations that preempt state laws and prevent tort claims in state courts. The Journal's Law Blog also looks at the issue and directs the reader to the Journal's editorial today, "Devices for Lawyers." The opinion piece assesses the move in Congress to overturn the Supreme Court's decision in Riegel v. Medtronic, a medical preemption case.

The Court's decision makes sense for many reasons, not least to avoid creating a sort of double-jeopardy for companies -- first having to run the FDA approval maze, then allowing a nationwide quilt of different laws and standards to second-guess that approval. In 1976 Congress passed the Medical Device Amendments, establishing a national standard with express pre-emption language barring states from imposing their own requirements.

The Supreme Court decision nonetheless sent up yowls of rage from the likes of Democratic House baron Henry Waxman, who said the decision "strips consumers of the rights they've had for decades." Who writes this stuff for Henry? Far from representing a radical departure in the law, the Court's reasoning upheld what had become a common opinion in the federal court system. In half a dozen holdings, federal circuit courts had already ruled in favor of pre-emption, covering states from Texas to Illinois to Pennsylvania.

What Waxman really wants, the Journal opines, is to "restore is the trial lawyer bingo that can net jackpot jury awards while wreaking havoc on national standards." The vehicle of restoration is the Medical Device Safety Act, introduced in the House by Rep. Frank Pallone (D-NJ) as H.R. 6381, and in the Senate by an absent Sen. Kennedy (D-MA) as S. 3398. You could almost hear the American Association for Justice shouting "Bingo!"

More on Medtronic and preemption here.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.