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Product Liability Defense Lawyers' Wish List For 2010
Law360
January 1, 2010
Product liability attorneys acknowledge Congress has its hands full with the health care overhaul and financial regulatory reform. But if they were in charge of the Congressional agenda, attorneys said, they'd ask lawmakers to create federal standards for product liability litigation, including clarity on preemption issues, a law mandating a prima-facie showing of general causation and a statute to rein in punitive damages. They also would like to see Congress revamp the Consumer Product Safety Improvement Act. In the wake of the U.S. Supreme Court's landmark decision in Wyeth v. Levine, product liability lawyers are itching for the court to clarify its position on federal preemption.
The high court rejected Wyeth's contention that it couldn't comply with its state law duty to modify labeling for a brand-name drug without violating federal law. Dechert LLP's James Beck, said the Supreme Court has been inconsistent on the issue of federal preemption . In February 2008 the high court issued a decision in Riegel v. Medtronic Inc., which held that people injured by defective medical devices couldn't sue in state courts if the devices and their warning labels had been approved by the FDA .
To clarify the inconsistency between Riegel and Levine, Beck said, the high court should take up the petition for review of the U.S. Court of Appeals for the Third Circuit's decision in Russell Bruesewitz v. Wyeth Inc. In that case, the Third Circuit said Wyeth was shielded from state product liability lawsuits because the National Childhood Vaccine Injury Compensation Act preempts all design defect claims. Hearing that case would shed light on whether Levine calls into question the Riegel decision, he said. In any case, Beck said, "they've been going both ways on preemption, and they need to make up their minds."
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