Obama Issues Directive Limiting Federal Preemption of State Laws; Consumer Rights Attorneys Praise the Decision

President Barack Obama has just issued a directive limiting the use of federal preemption to override state laws which allow injured parties to sue the makers of defective medical devices and dangerous drugs for damages.

The legal concept of preemption has been in the news a lot lately, most notably in two recent landmark U.S. Supreme Court rulings. In one case, Riegel v. Medtronic Inc., the court held that manufacturers of medical devices, such as hip replacements and heart defibrillators, may not be sued in state courts for damages caused by the defective products. In another unrelated case, Wyeth v. Levine, the nation’s highest court ruled that drug companies can be held liable for personal-injury damages caused by the defective products.

In Riegel, the court held that federal laws for the regulation of medical devices preempted, or came before, state personal-injury claims. Plaintiff’s attorneys cried foul over the Riegel decision and said it left thousands of injured parties without any legal remedy to seek compensation for their medical bills, pain and suffering, and other damages.

Today, President Obama issued a directive to the heads of all Executive Branch departments and agencies saying it is the policy of his administration that “preemption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states and with a sufficient legal basis for preemption.”

According to the directive, preemption of state common law will no longer be presumed or asserted by regulatory agencies absent “explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles.”

The directive further provides:

• Heads of federal government departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt state law through the regulation, except where preemption provisions are also included in the codified regulation.

• Heads of departments and agencies should not include preemption provisions in codified regulations, except where such provisions would be justified under legal principles governing preemption.

• Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt state law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.”

Les Weisbrod, President of the American Association for Justice and a partner in the Dallas law firm Miller, Curtis & Weisbrod, praised the Obama directive as a hard-fought win for consumers across the United States who are injured or killed by dangerous drugs or medical devices.

“This is an enormous victory,” Weisbrod said. “It reflects what we believe the law in reality has always been and how it should always have been applied. This corrects a decade of abuse of the regulatory process and signifies a triumph both for states’ rights and for the legal rights of all Americans and their families.”

The AAJ was founded in 1946 to promote a fair and effective justice system while supporting the work of attorneys in their efforts to ensure that any person who is injured by the misconduct or negligence of others can obtain justice in court.

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