Kia Franklin

Preemption case

This WSJ article covers the upcoming Supreme Court preemption case Wyeth v. Levine, and its safety and fairness implications. The preemption issue is absolutely essential to the corporate lobby's tort "reform" agenda of securing protection against the legal consequences of making and selling dangerous products to unsuspecting people. That's why big business groups are spending the big bucks to strengthen their implied preemption shield. According to the article:

The chamber [of Commerce], which has helped drive the pre-emption and tort-reform campaign, intends to raise $40 million for political candidates this year.

Much of this money will be used to secure a critical mass of politicians and judges who will support the tort "reform" campaign. But this is only to reinforce the stronghold. Preemption has already been established as part and parcel of the Bush Adminstration:

The Bush administration has over the past few years circumvented Capitol Hill by weakening regulatory agencies' safety rules and adding introductions, called preambles, to public-safety regulations that effectively prohibit plaintiffs from suing at the state level, where safety standards can be tougher than those at the federal level.

The article's prominent photo of Diana Levine--a former guitarist who lost her right arm to gangrene she contracted from a bad injection--reminds us that the preemption issue affects real people with real, legitimate claims. Since the FDA is seriously under-resourced and not effective at regulating these products, the courts are the last means for holding corporations accountable for letting dangerous products into the market and into our lives.

So the battle lines are not just between the corporate lobby and the trial bar. It is really about protecting the people who buy these products, undergo these medical procedures, take these prescriptions, and otherwise participate in the marketplace in good faith that the things they consume have been reasonably screened for safety.

Perhaps the issue is framed as one between trial lawyers and the corporate lobby (corporate lawyers, corporations, and politicians funded heavily by corporate supporters) because ordinary citizens, the ones whose health and safety are truly at stake, have not mobilized enough around their right to access the courts. Or perhaps it's because it's more convenient for tortdeformers to say "those darn trial lawyers" oppose tort "reform," than to admit that ordinary citizens and their safety/security are the real stakeholders in the battle.

Kia Franklin: Author Bio | Other Posts
Posted at 4:55 PM, Aug 14, 2008 in
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Thanks for the comment, Kia. Yes, the preemptors are very careful to ignore their great many opponents who have nothing to do with litigation, are not lawyers nor plaintiffs, nor share any other personal interest. Rather, these are folks concerned with just and rational policy. Corp Lawyers, Inc. does not seem to want us do know such people exist.

As far as ordinary folks, some of us have been working on mobilizing them for a very long time. Part of the problem is akin to the "big lie." In general, people have a hard time believing that it could be possible that they could lose such rights so easily. Here in Michigan, where we've been working against preemption for twelve years, we know what mobilizing takes. But it can happen, particularly in an election year.

Posted by: Justice in Michigan | August 15, 2008 3:02 AM

Justice - Part of the "big lie" is people unwilling to believe that companies they trust are, in some cases, doing bad things. It's hard for people to accept that a pharmaceutical company will sell a drug they know is going to kill people. It's much easier to think that those evil trial lawyers are just blowing something out of proportion... or that the victim had some other health condition... or any other reason that doesn't place blame on a company we're supposed to trust.

What trial lawyers need to do is run lots of full page ads with some of the documents that have turned up in pharma litigation. I wish I could say more, but I have one in my possession that would make your skin crawl. There's a fight brewing over whether it should be under seal or not, and I sure hope we win that one so I can publish it here.

Posted by: Justinian Lane | August 15, 2008 12:38 PM

Indeed. There is a bit of a movement afoot among people both within industry and FDA who know what FDA compliance _really_ means. In due time, we are likely to hear from a number of them. It will "crawl" a lot of skins, indeed.

Posted by: Justice in Michigan | August 15, 2008 1:55 PM