Thursday, February 21, 2008, 3:35 PM

"Preemption, Preemption, Preemption" Says The Supreme Court

Authored by: Jason Hicks
As previously mentioned in this blog, there are several high profile preemption cases pending before the Supreme Court this term. Yesterday, the Supreme Court decided three of them -- all in favor of federal preemption of state laws.

In Rowe v. New Hampshire Motor Transport Association, the Court held that Maine's Tobacco Delivery Law (which required carriers to verify that the recipients of tobacco shipments were not minors) was preempted by the Federal Aviation Administration Authorization Act (which prohibits states from regulating prices, routes or services of shipping companies).

In Preston v. Ferrer, the Court held that the Federal Arbitration Act preempted a California law that required an administrative hearing prior to arbitration.

And in Riegel v. Medtronic, the Court found that the Medical Devices Amendment (MDA) preempted state common law tort claims that would impose different or additional requirements than those approved by the FDA.

The following is an excerpt from Womble Carlyle Client Alert explaining the significance of the Riegel decision:
The United States Supreme Court, in Riegel v. Medtronic, sided with the
majority of the federal circuit courts today, holding that federal law
regulating medical devices preempts common law tort actions that would impose
different or additional requirements than those approved by the federal Food and
Drug Administration (“FDA”). This ruling puts to rest a long running dispute
over whether there is federal preemption for medical device product liability
lawsuits, but may have opened the way for an even longer dispute on the scope of
that preemption.

...

Justice Scalia, who delivered the opinion of the Court, broadly confirmed
federal preemption for any state law requirements different from or additional
to those imposed by the FDA on approved medical devices. The Court specifically
declined to adopt a more narrow view (once espoused by the FDA but now
abandoned) that the statute only preempted requirements specific to medical
devices, not requirements of general applicability to all types of products. The
Court’s opinion even suggests that preemption might extend to unfair trade
practice or UCC-based claims, which the FDA had previously declined to say were
preempted. Only one Justice, Justice Ruth Bader Ginsberg disagreed and in her
dissenting opinion accused the majority of "a radical curtailment of state
common-law lawsuits seeking compensation for injuries caused by defectively
designed or labeled medical devices" that was never intended by the Congress.

The opinion leaves open many questions about the scope of federal
preemption of state law claims for FDA-approved medical devices and will likely
be the subject of much debate and litigation.

These case will likely have an impact on preemption analysis far beyond medical devices, tobacco sales, and arbitration. Several preemption cases remain to be decided this term.

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