Crane accidents illustrate dangers of preemption
As readers of this site are no doubt aware, the pharmaceutical industry believes that if a drug is approved by the FDA, citizens injured by that drug should only be allowed to sue in very narrow circumstances. The industry argues that FDA approval should preempt lawsuits; this is called the doctrine of preemption.
This article about the crane accident in NYC shows several reasons why preemption can be dangerous:
The Occupational Safety and Health Administration's existing rules for workers who operate cranes have not been updated since 1971, though the agency acknowledges modernized standards could help prevent future accidents. Meantime, more than a dozen states have enacted legislation to require operator certification. ...
The Labor Department in May estimated there are as many as 82 fatalities annually associated with cranes in construction "and a more up-to-date standard would help prevent them."
In an effort to explain why four years have elapsed since the federal crane certification rules were first agreed upon, Worthy said the implementation process is very complex, requiring her agency to prove that the rules won't place undue burden on industry, among other things.
David Heidorn, manager of government affairs and policy at the American Society of Safety Engineers, criticized the government delay and said the negotiated rule-making process with industry should have helped get the rule in place more quickly. However, he acknowledged that OSHA's standards development process is underfunded while facing constant, intense scrutiny.
"There's huge pressure on OSHA because every time they come out with something they get sued," said Heidorn, whose group last year told Congress that the "safety and health standards-setting process is broken and needs to be fixed."
The FDA suffers from many of the same problems that OSHA does. It's under-funded and understaffed. It faces strong resistance whenever it tries to promulgate rules that the industry dislikes. The industry has a very strong sway over the FDA. Additionally, the FDA relies on fees paid by pharmaceutical industry for a good deal of its funding.
Preemption starts with the pharmaceutical industry, but the business lobby would like to expand it to just about everything. Crane collapses and kills people? You can't sue because the operator followed OSHA guidelines. Tire separates and kills your family in a rollover? The tire was DOT approved, so no lawsuit. Unless and until our federal agencies are properly funded, adequately staffed, and not subject to political pressure, preemption is a bad idea.