Preemption decisions run the very real risk of radically restructuring our civil justice system Without the existence of viable state tort law claims, injured patients have no practical means of redress against the entities responsible for their damages. The courts, as well as congress, have the preemption issue squarely in their crosshairs. The United States Supreme Court has granted review in three preemption cases this term. A decision is expected soon in Wyeth v. Levine, No. 06-1249, on the issue of whether FDA drug labeling requirements preempt state law claims. The court issued its decision in Altria v. Good, No. 07-562, finding no preemption of state law challenges to the advertising of “light” cigarettes. The third case involves a financial preemption case which is currently unscheduled: Cuomo v. the Clearing House, No. 08-453. The issue in Cuomo is whether federal law preempts the New York attorney general’s effort to enforce state fair lending law against national banks
On the legislative front, Henry A. Waxman of California, the chairman of the House Energy and Commerce Committee, and Frank Pallone Jr. of New Jersey, the head of its health subcommittee, plan to reintroduce preemption legislation soon and a similar Senate bill, sponsored last year by Edward M. Kennedy, Democrat of Massachusetts, and Patrick J. Leahy, Democrat of Vermont, is expected to be reintroduced in coming months.
The current regulatory environment is unquestionably broken and no longer provides the safeguards for which it was designed. Preemption profoundly aggravates this systemic problem by eliminating the tort system, which serves as the final safety net for the public. Hopefully, the Supreme Court or Congress or both will remedy this serious problem soon.
Richard J. Arsenault, 2011
