U.S. Supreme Court Weighs in on Federal Preemption Defense

The defense of preemption provides that a state law claim against a product manufacturer cannot be maintained due to a superseding federal law. In the last few years noteworthy U. S. Supreme Court cases have pieced together a patchwork quilt of law regarding the defense of preemption. Several cases have found in favor of product defendants. See, e.g., Bruesewitz v. Wyeth, 131 S. Ct. 1068 (2011); Reigel v. Medtronic, 552 U.S. 312 (2008); Geier v. Am. Honda Motor Co.,Inc., 529 U.S. 861 (2000). Still others have rejected or limited the defense. See, e.g., Williamson v. Mazda Motor of America, Inc., 131 S. Ct. 1131 (2011); Wyeth v. Levine, 555 U.S. 555 (2009). Although this area of the law can seem confusing and inconsistent, the Court’s jurisprudence is more understandable if one keeps in mind that the success of this defense depends upon the specific facts of the claim as applied to the particular language of the federal statute or regulatory scheme in question.

Preemption is based on the supremacy clause of the U.S. Constitution. The effect of the supremacy clause is that if two laws are in conflict, one state and one federal, the federal law will prevail since federal law is “supreme.” Preemption can arise when a state “standard” (whether a law, regulation or even a jury’s verdict or decision) is sought to be applied in an area governed by federal law. As an example, the U. S. Supreme Court has noted that a state-court jury verdict has the same effect as a “state standard” as a statute or administrative rule that may be pre-empted by a federal statute or regulatory scheme.  See Reigel v. Medtronic, 552 U.S. 312, 325 (2008).  Preemption deserves careful consideration, because if preemption exists, the practical effect will mean that the lawsuit is dismissed and defendant will have no liability or that the state law claim is converted into a federal claim and defendant can remove the case to federal court.

  Preemption cases often involve issues such as: What was Congressional intent with regard to preemption? If Congress’ intent is clear that there should be no preemption of efforts by the state to govern the area, then that is the end of the inquiry. Has Congress preempted the “field” sought to be regulated? Field or complete preemption is intended to apply where Congress has left no room for the states to regulate or impose other requirements, such as those that may result from state court tort judgments.  Is there express or implied preemption? Express preemption may apply where the federal statute or regulation promulgated by a federal agency within its statutory authority contains a provision barring state law under the circumstances encompassed by the provision. See, e.g. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). The successful defense in the Geier case was based on an implied preemption argument. Highlighting the case-specific nature of an implied preemption defense, Williamson in 2011 also followed an implied preemption analysis, but concluded that there was no preemption under the statute at issue. Is there a “savings clause” in the federal statute, and if so, what does it mean in the context of the specific regulation and how broadly can it be applied?  A savings clause generally provides that the federal law does not protect parties from applicable common law liability. And finally, is there a true conflict? When Congress establishes a “ceiling” – or maximum standard to which a product manufacturer may be held – then any requirement that is more stringent presents a true conflict. In contrast, when Congress establishes a “floor” – or minimum standard with which a product manufacturer must comply – then more stringent requirements may not present a true conflict, especially if the additional requirements do not frustrate the purpose of the federal regulation. If there is not a true conflict, then the preemption defense does not apply.

It is important to be conversant with the law of preemption in defending product liability cases. For example, Whitfield & Eddy attorneys have been successful at getting FDA-approved medical device products cases resolved very favorably by way of settlement based on federal court preemption. Eighth Circuit precedent is strong in this area when it comes to Class III FDA-approved medical devices. See, e.g., Brooks v.Howmedica, Inc., 273 F.3d 785 (8^th Cir. 2001). W & E attorneys also authored the “friend of the court” amicus curiae brief on behalf of the Defense Research Institute and the Iowa Defense Counsel Association in the seminal U. S. Supreme Court case of Geier v. Am. Honda Motor Co., Inc., 529 U.S. 861 (2000). In Geier, the Court adopted the position advocated by W & E and found that a “no airbag” claim was preempted by the applicable Federal Motor Vehicle Safety Standard which permitted so-called passive seat belts in a motor vehicle. Contact Kevin Reynolds at Reynolds@whitfieldlaw.com or Matt Giles at Giles@whitfieldlaw.com for more information.