Reseña de Deconstructing Wyeth V. Levine: The New Limits on Implied Conflict Preemption (Law Review Symposium 2009)

Deconstructing Wyeth V. Levine: The New Limits on Implied Conflict Preemption (Law Review Symposium 2009) de Case Western Reserve Law Review Resumen del Libro

This Symposium was convened to explore the state of the civil justice system in the United States. At the time, Wyeth v. Levine (1) was pending before the United States Supreme Court, and a decision was not anticipated until the end of the Term. My project was to comment on the state of the Court' s jurisprudence in regulatory implied conflict preemption cases. These are cases in which federal regulatory action is said to pre-empt state tort or products liability law because the application of state law is alleged to obstruct the fulfillment of federal regulatory objectives. The issue is important, not just because the disposition of Wyeth would decide whether failure-to-warn cases against drug companies are preempted, but also because Wyeth was seen as a test case for President George W. Bush's campaign to use regulatory implied conflict preemption to provide businesses insulation from state tort and products liability cases. From 2002 through 2008, each of the nation's key federal health and safety regulatory agencies--including the Food and Drug Administration (FDA), the National Highway Traffic Safety Administration (NHTSA), the Consumer Product Safety Commission (CPSC), and the Federal Railroad Administration (FRA)--took the position that virtually any regulatory action taken by the agency, including statements in regulatory preambles and obscure references on agency web-sites, had the effect of wiping away state law. If that position were upheld by the courts, Americans injured through no fault of their own by everyday consumer products might find themselves without any remedy at all. As discussed below, the Court's recent ruling in Wyeth emphatically rejects the FDA's argument that its approval of a drug's label preempts state failure-to-warn claims. The decision also clarifies and, in my view, narrows considerably the doctrine of regulatory implied conflict preemption, and does so in a way that likely consigns the Bush Administration's pro-preemption efforts to repudiation by the courts.

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