Personal Injury Law

Federal Pre-emption Push In Final Days Of Bush Administration

By Jane Akre

The issue of federal pre-emption has huge implications, but its importance is often overlooked by the mainstream media. So it's interesting that a discussion and background into federal pre-emption appears in the pages of the online Wall Street Journal.

Alicia Mundy reports, and appears on camera before a WSJ backdrop, that in the final weeks of the Bush administration, the president is keeping some promises made during past campaign - to encourage tort reform and shut down lawsuits.

The administration has written language in five or six different agencies covering about 50 different regulations, everything from motorcycle brakes to pain medication.  It could be the last shining accomplishment of his administration and comes in advance of a major defining decision by the U.S. Supreme Court in the case of Wyeth v. Levine, to be heard in early November.

The Department of Transportation added new pre-emption language October 8 that limits the number of seat belts car makers install and avoids lawsuits if someone is injured without one.  This is a rule now on the books and unable to be quickly undone, even if a new president doesn't share the pre-emption push.   

In March, the Federal Railroad Administration added pre-emption wording concerning hazards from railroad tank cars. That rule has not been finalized.

The pre-emption argument by corporations, represented largely by the U.S. Chamber of Commerce, aims to "neutralize plaintiff trial lawyer's excessive influence" in its ability to file lawsuits.

The Chamber's Institute for Legal Reform president, Lisa Rickard says to the WSJ, "It's exceedingly difficult for companies to comply with 50 different state standards."

The other side of the argument is represented by consumers groups and the American Association for Justice, which represents trial lawyers and the idea that Americans should be able to seek remedies in court. Jon Haber, the association's chief executive says, "This is the gift that keeps on giving for corporations."

The article features a conversation with former Bush domestic policy adviser Jay Lefkowitz, who helped form the end-run strategy to protect corporations from product liability.  

Apparently the need was discussed early on in the Bush years, especially the "failure to warn" issue that consumers have used to sue corporations, as is the case of Diana Levine against Wyeth. 

In that case, musician Diana Levine of Vermont went to the emergency room with a migraine. To reduce nausea, she was given a drug made by Wyeth which was delivered by IV Push, a method Wyeth did not warn against in its label. Levine lost her arm to gangrene.

She won before a jury and was awarded more than $6 million, but Wyeth is appealing the issue to the highest court in the land.

The Bush administration avoided going to Congress to get bills passed because of pressure from consumers and lawyers. They avoided going through the courts because they might lose.

Instead, Lefkowitz says, "There was already authority within federal government statutes and regulations to start the reform process without legislation."

Even though Americans before the Bush years, purchased cars made under federal standards and drugs with product inserts approved by the FDA, Mr. Lefkowitz now says, "You can't ask companies to follow different standards."

Expect the Levine case decision to impact consumer's ability to file product liability lawsuits and failure to warn litigation against all products that have the potential to injure consumers. #

Full post as published by InjuryBoard on October 16, 2008 (boomark / email).