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Putting the boot to preemption

Acting on behalf of the ailing Sen. Ted Kennedy (D-MA), Sen. Pat Leahy (D-VT) on July 31 introduced legislation to overturn the U.S. Supreme Court decision in Riegel v. Medtronic, the Medical Device Safety Act of 2008, S. 3398. The bill is companion to H.R. 6381, and another attack on the principle of federal premption.

The Kennedy news release and bill summary and Sen. Harkin's statement (scroll down from here) both chastise medical device manufacturers for faulty manufacturing, failing to note that the heart catheter in the Riegel lawsuit was misused by the doctor. Both also claim the Supreme Court erred in reading Congressional intent as precluding litigation in state courts. Yet creation of a federal regulatory regime as a more efficient and ultimately safer system than state-based regulation was raison d'etre of the Medical Device Amendments of 1976, right?

The American Association for Justice issued a news release, nuanced as always, quoting new AAJ President Les Weisbrod: "Right now we have a dangerous system of careless corporations, complete immunity and consumers going unprotected. This bill would fix the current system by revoking the 'get out of jail free' card that medical device manufacturers were wrongly awarded." Yep, and replace it with a big Chance Card.

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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.