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2010-2011 Supreme Court Term: Three More Consumer Claim Preemption Cases

by Professor Will Huhn on September 19, 2010

in Constitutional Law,Preemption,Wilson Huhn

     Professor Padfield intriguingly asks, "To What Extent Is the Roberts Court Pro-Business?"  One of the most critical areas where we might find an answer is the ongoing battle between America's manufacturers and consumers (and their surrogates the insurance industry and the trial lawyers) which continues unabated into the current term of the Supreme Court.  As in recent years, the Court has laden its docket with cases asking whether state lawsuits are precluded by federal law; specifically, whether federal regulatory statutes "preempt" state common law consumer claims.

     More and more, it seems as if the business of the Supreme Court is … business!  In recent terms the Supreme Court has become obsessed with determining the extent to which federal statutes prohibit plaintiffs from suing manufacterers for fraud, defective design, and negligent failure to warn, all claims that arise under the common law of the states.  In the recent case of Wyeth v. Levine (2009) Justices John Paul Stevens and Samuel Alito clashed over the proper understanding of preemption doctrine. 

Justice John Paul Stevens

Stevens follows a traditional approach, finding preemption only if the federal government has a adopted a statute that expressly preempts state law or if there are strong indications in the legislative history that Congress intended to preempt the area.  Stevens relies on several previous cases in ruling that there is a presumption against "implied preemption."  In Wyeth v. Levine, in holding that the power of the F.D.A. to review warning labels for prescription drugs does not preempt state lawsuits for "negligent failure to warn," Stevens said:

If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA's 70-year history.


Justice Samuel Alito

Justice Alito dissented in Wyeth.  He takes a broad approach to the doctrine of preemption, contending that nearly any federal regulation of an area prevents the states from suing manufacturers under state law.  When a federal agency is given the power to regulate a product or service, Alito would place the burden upon the plaintiff to prove that Congress intended to allow state common law claims to be brought.  In Wyeth Alito said:

Neither the FDCA nor its implementing regulations suggest that juries may second-guess the FDA's labeling decisions.


     This term the Supreme Court has already accepted three cases involving federal preemption of state common law claims. 

     In Bruesewitz v. Wyeth, Inc., Docket No. 09-152, the Supreme Court will consider whether the National Childhood Vaccine Injury Act of 1986 preempts certain design defect claims against vaccine manufacturers. The federal law provides that claims are preempted "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings." The Court of Appeals ruled that this law preempts all design defect claims, not simply those where the injuries were âunavoidable.â

     Williamson v. Mazda Motor of America, Docket No. 08-1314. A federal safety standard permits vehicle manufacturers to install lap-only seatbelts in certain seating positions instead of lap-shoulder seatbelts. However, federal law also provides that compliance with a federal motor vehicle safety standard âdoes not exempt a person from liability at common law.â The issue in this case is whether the manufacturerâs compliance with the federal safety standard impliedly preempts a state common law claim that the manufacturer should have installed a lap-shoulder belt, or that the manufacturer should have warned consumers of the dangers of lap-only belts.

     AT&T Mobility LLC v. Concepcion, Docket No. 09-893. The plaintiffs in this case brought a class action against AT&T on the ground that its offer of a âfree phoneâ was fraudulent. The arbitration clause in AT&T agreements not only requires arbitration of contractual disputes, but also requires individual arbitration of disputes; it prohibits class-wideâ arbitration. California law, however, considers prohibitions on class actions in arbitration to be âunconscionable.â AT&T asserts that the Federal Arbitration Act preempts the states from barring class action waiver clauses.

     I will discuss these cases in more detail in later postings.

Wilson Huhn teaches constitutional law at The University of Akron School of Law.  Visit his website on Constitutional Law for background and information about the Constitution, as well as links to other sites devoted to Constitutional Law.


Quidpro September 20, 2010 at 6:17 am

Savor the irony. Our acolytes of the nanny-state seek to increase the regulatory reach of the federal leviathan, but find that state tort laws may be pre-empted. Having loosed the federal beast upon businesses, they are shocked when it turns on consumers. What is the committed statist to do?

Professor Will Huhn September 22, 2010 at 10:59 am

I am struggling to envision an acolyte, a nanny, and a leviathan as part of a single metaphor, or even one image. How's this for a start: "An acolyte, a nanny, and a leviathan walk into a bar …."

Quidpro September 23, 2010 at 6:44 am

You are such a tease, Professor. You should not start the joke without giving us the punchline.

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