Three types of people with no right to sue thanks to preemption

I write this for those clients who call our office confused about when they have the right to sue for their injury and when they do not.  Warning:  Just because you have been seriously injured or even killed through no fault of your own does not mean you or your loved ones have the right to sue for justice!

                Preconception

Thanks to a confusing combination of: 1. Propaganda bought and paid for by tort-reform advocates; and 2. Limits on the right to sue by statute and an ever-expanding series of judicial opinions, an astounding number Americans believe the following three things:

a. Americans sue about anything;
b. Americans generally have the right to sue when they are injured; and
c. If you are injured through no fault of your own, your can sue.

Reality- You may not because of Pre-emption

Unfortunately, this is not the case.  Through a series of judicial opinions, the Federal Courts are eliminating the right to sue for consumers and recipients of drugs, products, medical device implants—you name it.  This is through a series of legal cases establishing that State Courts may not entertain suits if the Federal Government has “preempted” the State Courts’ power to entertain a case under express preemption or implied preemption.

                Express Preemption

Here, a Federal Statute that has passed both houses and been signed into effect by the President has stated Congress’s intention to preempt state law.  This is stated within the body of the legislation and lacks any “savings clause” that would permit a private citizen to sue.  This is NOT usually the subject of dispute for the purposes of our clients.  Although it really sucks for injured people.

                Implied Conflict Preemption (The "Meat of the Matter")

This is the “hot-bed” of litigation for those of us who represent injured people.  Even though Congress has not said that it explicitly intends to preempt a field and bar an injured person from court, Courts can nonetheless find a person is barred from court anyway.  Nowhere has this been more important that in the field of consumer products.  These comprise pharmaceutical drugs, medical devices and regular household items.

Without getting into the specifics that numb the mind of lawyers not to mention lay people, there are some settled questions that lead to unsettling results.  Results:

1. If you are injured by a generic drug through no fault of your own, you are likely preempted- Hot off the presses, on June 24, 2013, the U.S. Supreme Court in Mutual Pharmaceutical v. Bartlett decided in a 5-4 opinion that if you are injured by a generic prescription drug, you cannot sue.  Even if your skin burns off or your body and renders you blind (which, crazy as it sounds, is an actual condition known as “Stevens-Johnson Syndrome” http://en.wikipedia.org/wiki/Stevens%E2%80%93Johnson_syndrome ), you just have to tough it out and the responsible party gets away with it.  Even if they committed fraud.

2. If you are injured by a medical device for off-label (use of a product in a means not approved, but permitted by the FDA) marketing, you are possibly preempted- In Reigel v. Medtronic  and Buckman Co. v. Plaintiffs’ Legal Committee, the U.S. Supreme Court ruled that a case based on state law on behalf of a person injured from Class II medical devices are “impliedly” preempted by the Food and Drug Administration.  Here, the U.S. Supreme Court expressly ruled that even where a company committed fraud against the U.S. Government, that was insufficient to permit an injured person to sue for damages.  Whether you are actually preempted depends on the ability to plead and prove a “parallel claim”.  Because there is a split on what that actually means in various state and federal trial courts throughout the U.S., a pending Appeal in the California case John Coleman v. Medtronics Corporation et al. should provide an answer.  Stay tuned.

3. If you are injured from a consumer product containing a toxic/deadly chemical, you are possibly preempted-  In our consumer products cases, we invariably face motions to dismiss based on preemption under the Federal Hazardous Substances Act, 15 U.S.C. Sections 1261-1278.  This is an extremely fact-specific preemption argument based on the wording of a consumer product during a specific time period usually post-dating 1964 when the Federal Hazardous Substances Act was enacted.  

 

Apologies to the reader for the legal jargon, but some terms of art just cannot be avoided when describing something as complicated as preemption.  Nonetheless, attorneys who practice the above-mentioned fields must present these difficulties to their clients, who are members of the public.  

It is then up to the public to raise their voice against these decisions.  In time, the American system of justice may provide a means to overturn these decisions.  But for now, it is a tough time for injured Americans.

Dr. Irving J. Selikoff, the fight to Protect Workers and the Asbestos Industry’s Fight against Workers

Imagine a time before the U.S. EPA, before OSHA and before industrial hygienists were organized in attempting to protect American workers.  During that time, Irving J. Selikoff was a crusader on a mission to save workers from 100% preventable asbestos-related occupational diseases like asbestosis, mesothelioma and lung cancer.

In those days, the asbestos industry employed a “state of the art” defense to defend against cases where workers alleged their mesothelioma, asbestosis or lung cancer was caused by exposure to asbestos-related products.  This “state of the art” defense was, in a nutshell, that they did not and could not have known about asbestos hazards. 

So in 1964 and 1965 Selikoff did what only a member of the scientific community could do: organized a symposium dedicated to protecting workers against asbestos diseases by publishing peer-reviewed articles stating the dangers of asbestos exposure and related diseases.  This conference was on the “Biological Effects of Asbestos” and the presentations were published in 1965’s volume 132 of the Annals of the New York Academy of Sciences.  

Though any asbestos company who cared to know about asbestos hazards could have learned from the English 1890s publications of the Queen’s Inspectorate done on the workers dying in the Turner & Newall asbestos factories or even the 1940s publications 

What did the asbestos industry do in response?  The industry went to war against Dr. Selikoff.  The asbestos industry tape-recorded his presentations, made verbatim transcripts, hired a doctor to analyze the transcripts and provide any potential refutations, stating: 

As is still true today, often times the industry has the best ability to monitor health hazards in people exposed to various levels of a toxic pollutant—such as asbestos, benzene, diacetyl, etc.—in regularly exposed people.  They have the records, the data, the facts.  Therefore what is publically known often pales in comparison to what a company is forced to produce in litigation.

In the 1980s, the time had come when the asbestos industry did not produce important information publically.  Therefore, Dr. Selikoff knew that in order to gain valuable information it had to come from lawyers who sued these companies.  Larry Madeksho was one such lawyer who shared information with Dr. Selikoff:

The communication continued and the legal system in litigation against asbestos companies brought to light the dangers of asbestos over time.

At a time where there is serious, well founded doubt about the U.S. Justice System, it has nonetheless done tremendous good for American people.  Unfortunately, Dr. Selikoff passed away on May 20, 1992 at the age of 77.  We remember him and honor his legacy by fighting for human safety over corporate profit motive.

Why Toxic Exposures are a Danger to Us All

About me: 

I have practiced law on behalf of cancer and occupational disease victims across the country for more than 10 years now.  This blog is an attempt to relate my experience as an attorney dedicated to toxic disease victims and the son of a former asbestos worker and highly respected lawyer to the community for the community to use and understand information in the medico-legal community.  

What do I mean by occupational disease victims?  

The answer is entirely contextual. By that I mean: If you worked around poisonous chemicals like asbestos or benzene and have mesothelioma or lung cancer (for asbestos) or leukemia or lymphoma (for  benzene) then you are an occupational disease victim.  But victims are also the family members who suffer seeing a family member sick from a disease or even losing a loved one.  For sure they are also victims.  Sometimes beyond the distress of seeing a family member sick with an occupational disease; a person who has never worked directly with a toxic substance can be sick from it.  How is that possible?  It is possible because some substances are so toxic and so deadly that if your dad or husband brought the substance (like beryllium or asbestos) home on his clothes—you can be exposed and get sick or die from it.  About workers’ families developing mesothelioma, Wagner wrote this in 1960 here: Mesothelioma and Non-Occupational Asbestos Exposure

And about beryllium workers’ families developing chronic beryllium disease, Sam Roe bravely wrote about them here: Beryllium Exposures Article from The Toledo Blade

The lessons: 1. Occupational disease touches us all; 2. You don’t have to be a worker for ccupational disease to kill you.

About the blog: 

Succintly; 1. what does science say about a certain disease?  2. What does the law say about a certain disease?  3. What is going on in the greater legal community at present?  These questions will be answered from the following perspectives: under a microscope, in the context of litigation in U.S. courts, and from a historical perspective of people who have litigated toxic exposure cases for over 40 years.

Medical and scientific occurrences will be looked at times scientific article by scientific article, judicial occurrence by judicial occurence and (hopefully) with anecdotes as to what was occurring in the industrial and legal communities at the time of the events.  To my knowledge, it will be the first blog of its kind, but it will allow for valuable experience to be recorded and preserved.  And writing it will be healthier than drinking excessively or engaging in destructive consumption—two banes of modern lawyers that are best avoided.  Plus I can look back and reference them anytime.

A link to the facebook blog on beryllium exposure is here: https://www.facebook.com/MadekshoLaw