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Consumers Beware – Pre-emption By Preamble Steals Your Legal Rights

Recent actions by federal regulatory agencies, combined with a U.S. Supreme Court decision are extremely troubling to consumer advocates. The gist of the problem is that federal agencies under the Bush administration are taking the stance that their rules trump state court verdicts. For example, if a federal agency said a prescription drug was safe, then a state jury verdict finding the drug to be unsafe would be void.

Aside from the overarching argument that federal agencies have no constitutional right to exert control over state courts, the problem with this approach is that political considerations can decide whether the agencies find certain products to be safe. If a giant pharmaceutical company makes a large contribution to a presidential candidate, there will be a natural tendency for the president to influence the federal agency to protect the financial interests of the pharmaceutical company. Some consumer advocates think that’s exactly what’s happening now.

Who gets hurt by this process? Consumers who have legitimate legal claims against manufacturers, but are prevented from filing those claims.

The Dallas Morning News ran an interesting story about this Pre-emption by Preamble.” Here are excerpts.

If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can’t sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission says you can’t sue a mattress maker if your mattress bursts into flame despite meeting commission standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration proposals for stronger roofs.

Plaintiffs’ attorneys call it “silent tort reform.” But it’s part of tension existing since the nation’s founding: conflict between state and federal law.

If they clash, state laws give way. That’s in Article Six of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What’s riling plaintiffs’ lawyers, consumer groups and some regulators is agencies’ assertions their rules override state product liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

“These pre-emption preambles may be only the beginning,” New York University law professor Catherine Sharkey wrote in the DePaul Law Review. She projected preambles may “displace competing or conflicting state regulations or common law as a matter of course.”

The practice varies by agency but is spreading. “It’s absolutely a trend,” said Deepak Gupta, staff lawyer for Ralph Nader’s public citizen Litigation Group.

One example of what this means to the average person is found in NHTSA proposals for new SUV rollover rules.

Attorneys general from 26 states asked the organization in 2005 to drop lawsuit protection from the rules, which could go into effect as early as July 1.

“State governments and the federal government will have to cover millions of dollars in health care costs which they will pass along to taxpayers, costs that, by all rights, should be the responsibility of manufacturers,” the attorneys general wrote.

Sen. Patrick Leahy, D-Vt., at hearings last fall, said agencies have issued at least a dozen rules to shield drug and other product manufacturers from liability.

Indeed, plaintiffs lawyers say “pre-emption by preamble” has been coming in waves during the Bush administration.

Bob Kraft

I am a Dallas, Texas lawyer who has had the privilege of helping thousands of clients since 1971 in the areas of Personal Injury law and Social Security Disability.

About This Blog

The title of this blog reflects my attitude toward those government agencies and insurance companies that routinely mistreat injured or disabled people. As a Dallas, Texas lawyer, I've spent more than 45 years trying to help those poor folk, and I have been frustrated daily by the actions of the people on the other side of their claims. (Sorry if I offended you...)

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