Justinian Lane

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."

Source: Federal crane operator rule languishing since 2004 | | Courier-Post

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.

Justinian Lane: Author Bio | Other Posts
Posted at 11:53 AM, Jun 02, 2008 in Liability Immunity | Preemption
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Would it be too much trouble for you to learn what the actual argument for preemption (and for FDA preemption, which is a special case) is?

Please also point me to a single person of any notability who has argued that the 1970s regulations for cranes should have preemptive effect.

In short, you are addressing two strawmen. Whether this is because of ignorance or because you are incapable of refuting the argument for preemption and have decided to instead make up a story is unknown.

(Also, your facts about the FDA are wrong. The empirical evidence is that the FDA is over-cautious and over-regulates, not the reverse.)

Posted by: Ted | June 3, 2008 7:22 AM

I alleged that the FDA is underfunded. Did you miss the verbal sparring between Congressman Dingell and FDA Commissioner von Eschenbach over funding? The commissioner admitted that the FDA needs more funding but wasn't even able to answer how much they needed.

Did you also miss the story about how the FDA rushes to approve drugs right before the deadling for the user fee expires? For those who don't know, the FDA charges pharmaceuticals a hefty fee to approve a drug. The catch is that the FDA must approve the drug before a certain deadline, or they don't get the fee.

And did you also miss the story about how drugs approved right before the user-fee deadline have been more likely to be recalled than drugs approved earlier? The study was published in the New England Journal of Medicine.

Pardon me if I'm not comfortable trusting an underfunded, mismanaged agency that relies upon funding from the drug industry.

Posted by: Justinian Lane | June 3, 2008 10:41 AM

The fact that Congress has *poorly regulated* an industry does not lead to the conclusion that they should lack the *authority* of preemption to do so. The benfits of uniform regulation under the Commerce and Supremacy Clauses of the Constitution should hardly be scrapped simply because a particular federal agency is "underfunded."

In short, if you hate the FDA, then your beef is with Congress, not the Constitution.

Posted by: Lawyer | June 3, 2008 11:41 AM

Lawyer, I agree that Congress certainly has the authority to promulgate FDA preemption. But they haven't used it. For something like 30 years, the FDA's position was that it did not preempt civil lawsuits. Only recently has the FDA switched its position and claimed that it does have that authority. But the FDA cannot just grant itself that authority ipse dixit - only Congress can grant that authority.

And until Congress properly funds the FDA, and the FDA can wean itself from pharma money, Congress should not even consider granting that authority.

Posted by: Justinian Lane | June 3, 2008 11:56 AM

Wyeth's brief and the solicitor general's brief explain quite nicely why Justinian's ipse dixit position on the law is incorrect.

The brief my co-counsel and I filed today (available on Overlawyered) explains nicely why the problem with FDA regulation is not "underfunding." Every agency wants more funding. The empirical evidence is that the FDA over-regulates, not under-regulates, and failure-to-warn lawsuits will make the problem worse.

Posted by: Ted | June 3, 2008 6:07 PM

I look forward to reading your brief, Ted. I don't think I've ever read anything you've filed with a court. I wonder if it contains the trademarked Ted Frank hostile tone...

For the record, you're incorrect in stating that "every" agency wants more funding. The FDA head couldn't even give a figure as to how much money he needed for the agency to do its job properly. And remember how the head of the Consumer Products Safety Commission opposed a bill that would have dramatically increased the agency's funding?

Posted by: Justinian Lane | June 3, 2008 6:29 PM

"And remember how the head of the Consumer Products Safety Commission opposed a bill that would have dramatically increased the agency's funding?"

She didn't oppose the increased funding. She opposed the numerous parts of the bill that were appallingly bad and would make consumer safety worse. (Unfortunately, because trial lawyers and their lobby care more about their own profits than consumer safety, the bill passed.) Look up CPSC Act on Overlawyered.

Posted by: Ted | June 4, 2008 8:03 AM

Regarding your article about federal crane certification , I would like to share an article I wrote about this same subject. The only difference this involves overhead cranes and operator certification. The article I wrote appeared in the Agust issue of
Cranestoday magazine. This is a world wide magazine. I would like to thank the Richard Howes the editor of Cranestoday magazine for putting my comments in the magazine. I can only the rite people will read it and do something about this growing problem before more lives are lost. Below is the article


I hope you’re well. I intend to use your recent letter in the September/October issue of OCH magazine. I have rewritten it slightly, as below:

Dear Editor,
Overhead crane inspectors and operators should be better qualified and they should have certification to prove that they have been fully trained.
OSHA 1910.179 should be revised, particularly repetitious paragraphs in OSHA 1910.179 that state the employer is responsible for assigning qualified personnel in too many areas. Some 80% of employers do not have the full understanding of overhead crane operations.
The lack of overhead crane service technicians in the US is a huge problem. Many manufacturing companies rely on overhead crane service companies to perform inspections for their overhead material handling equipment.
It is startling how some of the large crane service companies put their new employees through a three-day inspection class which largely teaches the new recruits to sell crane parts rather than really taking the time to fully assure they are really qualified.
There are not many young men or women looking to get into this business. If one thinks about what is required to inspect a 100 ton steel mill crane and assure this crane is safe, it takes a lot of experience. Not to say there are not very qualified personnel out there to perform these jobs (indeed there are), but if a survey was taken on the average age of a seasoned veteran in the overhead crane industry the result will be 40-years-old, or more.
Where do our safety standards go once these people have had enough? Hopefully OSHA will look at this before accidents start happening. On a national average, lost time accidents are becoming more frequent every year. Why must we wait until the worst-case scenarios happen?
Hopefully this will be looked at and stronger regulations will be put into place. It appears that it takes serious accidents to focus serious attention in the necessary areas.
Rick Wall

To add weight to this can you please let me know your job title and company name (unless you particularly don’t want to include it) and outline your day-to-day role within the industry?

I look forward to hearing from you.

Kindest regards,

Richard Howes
Editor: Hoist, Overhead Crane & Hoist (OCH)
t: +44 (0)208 269 7861 m: +44 (0)7725 059 528

Posted by: Rick Wall | August 10, 2008 2:03 AM

Great job with the info. How did you find it? Please let me know.

Posted by: HotRusGirl | April 23, 2009 7:17 PM

I agree that the 1910.179 OSHA crane standards should be updated.

There is so much misinformation propagated to owners of overhead cranes by sales people of crane inspection companies who surprisingly do not understand the regulations. The majority of overhead crane owners are looking for an annual crane inspection for compliance with OSHA. We consistently hear words of surprise from customers when we explain the required types of crane inspection: initial, periodic, frequent, daily/shift and monthly documentation of wire rope/chain and hook.

We explain that a proper inspection program designed to keep your cranes safe and in compliance requires three critical elements.

1) A qualified and experienced crane and hoist inspector / technician that has the knowledge and ability to identify the issues and problems that could cause failure and injury with the particular piece of equipment.

2) Enough time allowed on the piece of equipment for the qualified inspector to throughly check all the components and systems that could fail.

3) Inspections performed often enough to catch problems or potential safety issues withe the crane before failure and potential injury occurs.

We advise that customers have initial inspection records on file and are performing inspections that meet and exceed the requirements of the manufacturer.

"A crane that is inspected with an "annual inspection" only to appear compliant with OSHA requirements often is not safe while a crane that is inspected and maintained properly to ensure safety is almost always compliant."

Crane 1 Services

Posted by: Steve Harris | September 9, 2010 11:27 PM