Litigation

Blogging From DRI's Product Liability Conference: Preemption

By Bruce Nye

    For years, I would hear from associates from UCLA School of Law that Professor Erwin Chemerinsky was the best law professor in the world.  He later moved on, first to Duke, then to the position of Dean of the newly established U.C. Irvine School of Law.  I?d never heard him speak before, and I see now what they were talking about.

    In just forty-five minutes, Dean Chemerinsky  did a great run-down on the general principles of preemption, and then laid out the Supreme Court's strange, strange trip from 2000 to 2009 in the world of (mostly) implied preemption.  For most of this decade, every time the Supremes considered a preemption case, it found preemption

• Geier v. American Honda Motor Company, 529 U.S. 861 (2000) ? preemption even when there is a savings clause.

• Lorillard Tobacco v. Riley, 533 U.S. 525 (2001) ? 5-4, court finds that federal law regulating content of tobacco ads preempts state law concerning location of tobacco ads.

• American Insurance Company v. Garamendi, 539 U.S. 396 (2001) ? California statute provided that insurance companies doing business in California who had sold Holocaust-era policies in Europe had to disclose those policies was preempted by the ?implied dormant foreign affairs power of the President.?  Dean Chemerinsky:   ?I?ve been teaching Constitutional law for 29 years, and until this case, I?d never heard of the ?implied dormant foreign affairs power of the President.??

• Chamber of Commerce of the United States v. Brown 128 S.Ct. 2408 (2008) ? California law that anyone who receives more than $10,000 from the state can?t use those funds to engage in anti-union activity.  Preempted by Federal labor regulatory scheme.

• Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008) ? preemption clause in the medical device amendments to the Food and Drug Act bar common-law tort claims challenging the safety or effectiveness of a medical device that had received pre-market approval.

    But then along come Altria Group, Inc. v. Good, 129 S.Ct. _____(2008) and Wyeth v. Levine, 129 S.Ct. 1187 (2009), rejecting preemption. 

    The latter case is most significant, because of its 7-2 finding of no conflict preemption.  The reason:  because nothing kept Wyeth from giving more warnings than what was approved by the FDA;  it could  even modify the label and ask for approval afterwards. 

    But according to Dean Chemerinsky, the most significant thing about this decision may be  is Justice Thomas?s concurring opinion, suggesting that his views have changed on implied preemption have dramatically shifted.  After eighteeen years on the Supremes voting with the majority in favor of preemption in all of the previous cases up to Altria, he apparently doesn?t believe in implied preemption anymore:

    Per Dean Chemerinsky, this change of heart on the part of Justice Thomas  will make implied preemption more problematic in the future.

Full post as published by CalBizLit on April 16, 2009 (boomark / email).