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.