Title: Federal Preemption of Product Liability Claims in the United States
1(No Transcript)
2Federal Preemption of Product Liability Claims
in the United States
- British Institute for International Comparative
Law - Product Liability Mass Torts in a Global
Marketplace - London - June 2007
Tripp Haston
3Federal Preemption of Product Liability Claims in
the United States
- Framework of Federal Preemption
- Dual Legal Systems State Federal
- Which Legal System Has Priority?
- It Depends
- U.S. Constitution Supremacy Clause provides
that federal law can preempt state law in certain
circumstances - Consequence of Preemption?
- Nullifies applicable state law with regard to
rights or remedies provided and federal law
controls
4Federal Preemption of Product Liability Claims in
the United States
- Types of Federal Preemption
- Express Preemption
- Implied or Field Preemption
- Conflict Preemption
- Sometimes lines blurred between Implied/Field
Conflict Premption
5Federal Preemption of Product Liability Claims in
the United States
- Express Preemption
- Instances in which Constitution itself or
Congress declares a federal law or federal
agencys decisions completely preempt state law
in a particular field. - Examples
- Constitution Foreign Affairs, National Defense
Immigration Policy - Statutory Airline Deregulation Act
Securities Litigation Uniform Standards Act
6Federal Preemption of Product Liability Claims in
the United States
- Implied Preemption
- Instances in which Congress legislative scheme
or a federal agencys regulatory scheme in a
particular field is sufficiently comprehensive to
make reasonable inference that it left no room
for state regulation - Examples
- Regulation of Airline Schedules FAA/NRA
- City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624 (1973) - Regulation of Ports/Waterways PWSA
- United States v. Locke, 529 U.S. 89, 112-16
(2000)
7Federal Preemption of Product Liability Claims in
the United States
- Conflict Preemption
- Instances in which compliance with both federal
and state law is either impossible or stands
as an obstacle to full purposes and objectives
of federal law. Examples - Examples
- Fraud on the FDA claims
- Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S.
341 (2001) - Certain Automobile Design Defect claims
Geier v. American Honda Motor Co., Inc., 529
U.S. 861 (2000)
8Federal Preemption of Product Liability Claims in
the United States
- Food Drug Administration
- New Rule on Labeling Content Format
- (21 C.F.R. 201.56 201.57 eff. June 30,
2006) -
- Consumer Products Safety Commission
- New Rule Setting Mattress Flammability Standards
- (16 C.F.R. 1633 eff. July 1, 2007)
- National Highway Traffic Safety Administration
- New Rule Setting Roof Auto Crush Resistance
- (70 Fed. Reg. 49223 (2005)
9Federal Preemption of Product Liability Claims in
the United States
- FDA Preemption of State Law Products Claims
- New FDA Rule on Labeling Content Format
- (21 C.F.R. 201.56 201.57 eff. June 30,
2006) -
- Background?
- Major Overhaul of Labeling Format
- Justifiable Industry Concern
- Significance?
- State Law Pharma Claims Failure to Warn
- FDA First Time Spoken Broadly on Preemption
- Its Labeling Decisions Both a Ceiling a
Floor. - Specifically Described Broad Categories of
Preempted Claims
10Federal Preemption of Product Liability Claims in
the United States
- Significant Illustrative Preempted Claims
- Failing to include contraindication or warning
for information that fails to meet FDA rules for
inclusion of such information - Failing to include timely warnings that
Sponsor submitted to FDA, if that information was
not required by FDA, unless proven Sponsor
intentionally withheld information from the FDA - Failing to include information or warnings which
the FDA had prohibited Sponsor from including - Including information in Label or Advertising
which FDA approved
11Federal Preemption of Product Liability Claims in
the United States
- Judicial Interpretation of FDAs Position
- Issue Does Chevron deference apply?
- Chevron U.S.A., Inc. v. National Resources
Defense Counsel, Inc., 467 U.S. 837 (1984) - Courts affording substantial deference do so
because - Absence of clearly expressed Congressional
intent - FDA is uniquely qualified to administer complex
regulatory scheme involving technical subject
matter, and/or - FDA is final authority over labeling revisions
- Cases
- Sykes v. GSK, 2007 WL 957337 (E.D. Pa. Mar. 28,
2007) - Colacicco v. Apotex, 432 F.Supp.2d 514 (E.D. Pa.
May 25, 2006) - In re Bextra, 2006 WL 2374742 (N.D. Ca. Aug. 16,
2006)
12Federal Preemption of Product Liability Claims in
the United States
- Judicial Interpretation of FDAs Position
- Issue Does Chevron deference apply?
- Chevron U.S.A., Inc. v. National Resources
Defense Counsel, Inc., 467 U.S. 837 (1984) - Courts affording little to no deference do so
because - FDA attempts to supply Congressional intent in
Preamble - FDA change in position re preemptive effect of
its Preamble - 2000 Proposed Rule regulations will not preempt
state claims - 2006 Final Rule regulations preempt state
claims - Cases
- McNellis v. Pfizer, 2006 WL 2819046 (D.N.J. Sept.
29, 2006) - Perry v. Novartis, 456 F. Supp. 2d 678 (E.D. Pa.
Oct. 16, 2006) - Barnhill v Teva Pharmaceuticals, No. 06-282 (S.D.
Ala. April 28, 2007)
13Federal Preemption of Product Liability Claims in
the United States
- Cases Finding Preemption
- Sykes v. GlaxoSmithKline, 2007 WL 957337 (E.D.
Pa. 2007) - In re Bextra, 2006 WL 2374742 (N.D. Ca. 2006)
- Colacicco v. Apotex, 432 F.Supp.2d 514 (E.D. Pa.
2006) - Conte v. Wyeth, 2006 WL 2692469 (Cal. Sup. Ct.
2006) - In re Vioxx, Texas State Court Opinion (April
2007) - Cases Against Preemption
- Weiss v. Fujisawa Pharma. Co., 464 F.Supp.2d 666
(E.D. Ky. 2006) - Levine v. Wyeth, 2006 WL 3041078 (S. Ct. Vt.
2006) - Perry v. Novartis Pharma., 456 F.Supp.2d 678
(E.D. Pa. 2006) - McNellis v. Pfizer, 2006 WL 2819046 (D.N.J. 2006)
- Jackson v. Pfizer, 432 F.Supp.2d 964, 967 (D.
Neb. 2006) - Coutu v. Tracy, 2006 WL 1314261 (Super. Ct. R.I.
2006) - Laisure-Radke v. Par Pharma., 2006 WL 901657
(W.D. Wash. 2006) - Peters v. Astrazeneca, et al., 417 F.Supp.2d 1051
(W.D. Wis. 2006) - Barnhill v Teva, No. 06-282 (S.D. Ala. April 28,
2007)
14Federal Preemption of Product Liability Claims
in the United States
- British Institute for International Comparative
Law - Product Liability Mass Torts in a Global
Marketplace - London - June 2007
Tripp Haston
15Federal Preemption of Product Liability Claims in
the United States
- Framework of Federal Preemption
- Dual Legal Systems State Federal
- Which Legal System Has Priority?
- It Depends
- U.S. Constitution Supremacy Clause provides
that federal law can preempt state law in certain
circumstances - Consequence of Preemption?
- Nullifies applicable state law with regard to
rights or remedies provided and federal law
controls
16Federal Preemption of Product Liability Claims in
the United States
- Types of Federal Preemption
- Express Preemption
- Implied or Field Preemption
- Conflict Preemption
- Sometimes lines blurred between Implied/Field
Conflict Premption
17Federal Preemption of Product Liability Claims in
the United States
- Express Preemption
- Instances in which Constitution itself or
Congress declares a federal law or federal
agencys decisions completely preempt state law
in a particular field. - Examples
- Constitution Foreign Affairs, National Defense
Immigration Policy - Statutory Airline Deregulation Act
Securities Litigation Uniform Standards Act
18Federal Preemption of Product Liability Claims in
the United States
- Implied Preemption
- Instances in which Congress legislative scheme
or a federal agencys regulatory scheme in a
particular field is sufficiently comprehensive to
make reasonable inference that it left no room
for state regulation - Examples
- Regulation of Airline Schedules FAA/NRA
- City of Burbank v. Lockheed Air Terminal Inc.,
411 U.S. 624 (1973) - Regulation of Ports/Waterways PWSA
- United States v. Locke, 529 U.S. 89, 112-16
(2000)
19Federal Preemption of Product Liability Claims in
the United States
- Conflict Preemption
- Instances in which compliance with both federal
and state law is either impossible or stands
as an obstacle to full purposes and objectives
of federal law. Examples - Examples
- Fraud on the FDA claims
- Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S.
341 (2001) - Certain Automobile Design Defect claims
Geier v. American Honda Motor Co., Inc., 529
U.S. 861 (2000)
20Federal Preemption of Product Liability Claims in
the United States
- Food Drug Administration
- New Rule on Labeling Content Format
- (21 C.F.R. 201.56 201.57 eff. June 30,
2006) -
- Consumer Products Safety Commission
- New Rule Setting Mattress Flammability Standards
- (16 C.F.R. 1633 eff. July 1, 2007)
- National Highway Traffic Safety Administration
- New Rule Setting Roof Auto Crush Resistance
- (70 Fed. Reg. 49223 (2005)
21Federal Preemption of Product Liability Claims in
the United States
- FDA Preemption of State Law Products Claims
- New FDA Rule on Labeling Content Format
- (21 C.F.R. 201.56 201.57 eff. June 30,
2006) -
- Background?
- Major Overhaul of Labeling Format
- Justifiable Industry Concern
- Significance?
- State Law Pharma Claims Failure to Warn
- FDA First Time Spoken Broadly on Preemption
- Its Labeling Decisions Both a Ceiling a
Floor. - Specifically Described Broad Categories of
Preempted Claims
22Federal Preemption of Product Liability Claims in
the United States
- Significant Illustrative Preempted Claims
- Failing to include contraindication or warning
for information that fails to meet FDA rules for
inclusion of such information - Failing to include timely warnings that
Sponsor submitted to FDA, if that information was
not required by FDA, unless proven Sponsor
intentionally withheld information from the FDA - Failing to include information or warnings which
the FDA had prohibited Sponsor from including - Including information in Label or Advertising
which FDA approved
23Federal Preemption of Product Liability Claims in
the United States
- Judicial Interpretation of FDAs Position
- Issue Does Chevron deference apply?
- Chevron U.S.A., Inc. v. National Resources
Defense Counsel, Inc., 467 U.S. 837 (1984) - Courts affording substantial deference do so
because - Absence of clearly expressed Congressional
intent - FDA is uniquely qualified to administer complex
regulatory scheme involving technical subject
matter, and/or - FDA is final authority over labeling revisions
- Cases
- Sykes v. GSK, 2007 WL 957337 (E.D. Pa. Mar. 28,
2007) - Colacicco v. Apotex, 432 F.Supp.2d 514 (E.D. Pa.
May 25, 2006) - In re Bextra, 2006 WL 2374742 (N.D. Ca. Aug. 16,
2006)