Alex Sugerman-Brozan

Supreme Court to hear two “preemption” cases

September 28th, 2007
Cross-posted from PAL:

Readers of this blog know that we here often get our knickers in a twist over federal preemption arguments by pharmaceutical defendants seeking to avoid liability in lawsuits. Prescription drug and medical device companies have been arguing with increasing frequency in recent years that lawsuits against them brought under state law are “preempted” by the FDA’s authority under federal law. (Remember that 8th Grade U.S. Civics course? Under the Constitution’s “Supremacy Clause,” federal law trumps state law when the two conflict).

Unfortunately, the FDA has been aiding and abetting them by intervening in products liability lawsuits and by adding a preamble to a Guidance on Drug Labellng, making the same arguments. Given the FDA’s abdication of its responsibility to aggressively enforce drug and device safety, this amounts to “We won’t enforce it, and we won’t let anyone else either.”

There’s a pendulum effect to corporations’ approach to federalism, and we’re at one apex of its swing. When the federal government is aggressive with regulation and enforcement, business is all about “states’ rights.” When the federal government moves away from enforcement and regulation, states step in to fill the void. Suddenly, the federal government is paramount to business, and those pesky states are “interfering” in the unique and exclusive prerogatives of federal agencies. We’ve witnessed the recent odd spectacle of various industries pushing for federal regulation, as ably documented in this recent New York Times article: “In Turnaround, Industries Seek U.S. Regulations” (Sept. 15, 2007). The shifting allegiance of course reeks of what it is - opportunism.

But the Constitution remains, and its delicate balance of federal and state powers. (Digression into the 10th Amendment omitted for your comfort). The Supreme Court has agreed to hear two cases concerning whether federal law preempts the rights of consumers to bring lawsuits under state law against drug and device manufacturers. The first, Riegel v. Medtronic, is summarized below, by Public Citizen Litigation Group, which represents the Riegels:

After suffering serious injury when a balloon catheter burst while he was undergoing an angioplasty procedure, Charles Riegel and his wife sued the catheter’s manufacturer, Medtronic, Inc (NYSE:MDT). Medtronic moved to dismiss the lawsuit, arguing that the Food, Drug, and Cosmetic Act expressly preempts state-law damages actions brought by patients who have been injured by medical devices that received premarket approval from the Food and Drug Administration. The court agreed and dismissed the case.

Public Citizen represented the Riegels on appeal and represents them now before the U.S. Supreme Court. The Supreme Court granted cert. on June 25, 2007, and will hear the case next Fall. The question before the Court is whether the express preemption provision of the Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts state-law claims seeking damages for injuries caused by medical devices that received premarket approval from the FDA.

[PAL joined an amicus curiae (”friend of the Court”) brief submitted by Community Rights Counsel to the Supreme Court. That brief can be found here.]

The second was covered in an AP Story earlier this week (”Court Takes Drug Liability Case“):

The case involves a product liability lawsuit against Pfizer’s (NYSE:PFE) Warner-Lambert unit. A group of Michigan plaintiffs led by Kimberly Kent in April 2000 sued Warner-Lambert Co. over alleged injuries caused by its Rezulin diabetes drug. Rezulin was ordered off the market in March 2000 by the Food and Drug Administration after it was linked to nearly 400 deaths and hundreds of cases of liver failure.

The District Court dismissed the case, arguing that a Michigan state law that prohibits virtually all lawsuits against drug companies applied, and then also ruling that a narrow exception in that law — that suits are allowed when the drug company misled the FDA to get the drug approved — was preempted. Talk about damned if you do, damned if you don’t! The Court basically ruled that state law applied, except when it might benefit the injured consumers, in which case federal law applied and preempted the exception written into state law. The 2nd Circuit Court of Appeals disagreed, reinstating the suit, and of course Warner Lambert appealed to the Supreme Court, which agreed to hear the case.

Hopefully the Supreme Court will rein in the running joke that federal preemption has become, acknowledge that state law litigation does not interfere with the FDA’s regulation of drugs (a position the FDA itself took for years, and only changed under the current administration) and restore the balance set out in the Constitution that protects the states’ historic “police powers” to protect the health and safety of their citizens.

Alex Sugerman-Brozan: Author Bio | Other Posts
Posted at 4:52 PM, Sep 28, 2007 in Preemption | Supreme Court Rulings
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Hey, I just wanted to tell you about that damn Drug and Device Law blog, over at I once had the gross displeasure of listening to "Bexis" aka Jim Beck prattle on about what a terrible world we live in because of plaintiff lawyers and how wonderful the good old days were. He talked about the glory days, days that sounded like Beck had seen "It's a Wonderful Life" too many times. I just had to write to say what a phony, know-nothing that jerk is.

Remember in "It's a Wonderful Life" how that poor, distraught pharmacist Mr. Gower accidentally put poison in the capsules and how a young George Bailey saved the day by refusing to deliver them? That's the sort of negligence Beck thinks is really out there today. He thinks these big altruistic drug companies are always wrongfully accused of negligence when the problems (those problems, incidentally, do not really exist, I guess) with their life-saving products (of yes, they are all "life-saving" - even Propulsid!) maybe hurt a few people (but maybe those people are not really hurt at all). What a load of BS.

There are some giant multinational drug companies out there whose multi-billion dollar profits are being squeezed by bioequivalent generics. Their ex-marketing MBA multi-million dollar per year plus options CEOs push for more sales. So, the companies need to disparage other equally useful products, create junk (i.e., fraudulent) clinical research to bolster their own products, pay doctors to write these products into clinical guidelines, pay other doctors to give CME lectures, pay other companies to publish fake clinical study results in journal supplements that aren't actually peer-reviewed, and get those drugs prescribed to not one, but to millions of people, some of whom don't even need the drug in the first place. Of course, the one person who never knows the truth is the apocryphal "learned intermediary" - the doctor who has been so bamboozled and misled that he or she will defend their intellectual prowess to the last second by swearing that "even if I had know this drug would kill my patient, I still would have given it to him or her."

Beck doesn't realize that plaintiff lawyers didn't make bad drugs, they didn't injure patients needlessly, they didn't mislead doctors and the FDA, they didn't bolster their corporate profits on the backs of poorly educated, marginally ill people who are over-prescribed medicines they don't need. Some day Beck will wake up from the Bedford Falls-like world he lives in and realize that Pfizer is not Mr. Gower, and he is no George Bailey.

Now that Beck and Hermann have seen fit to make their little public blog, I would like to posting comments periodically to point out what BS they are frothing from their mouths. Unfortunately, their blog moderates comments, so you will never see anything there that disagrees with them. Alas, such is the "freedom" of the internet.

Posted by: Frank Mitchell | October 4, 2007 3:15 PM