January 1, 1970 · FLEMING | NOLEN | JEZ, L.L.P.
Preemption is a legal issue that bars recovery for many meritorious cases. Thousands of litigants with serious injuries have had cases thrown out of court when courts conclude that their state law claims are “preempted” by federal law. Basically, this doctrine gives manufacturers unwarranted immunity from tort lawsuits. Only now has Congress taken steps to act to correct this serious injustice.
Rep. Mike Fitzpatrick (R-PA-8) has introduced a bill with Rep. Louise Slaughter (D-NY-25) that would eliminate federal preemption as a defense. This bipartisan bill was introduced in the House of Representatives on Jun 8, 2016. The actual bill is quite simple. It amends Section 521 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360k) by way of the following:
- (a) Amendment- Section 521 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C 360k) is amended by adding at the end the following:
- (b) NO EFFECT ON LIABILITY UNDER STATE LAW – Nothing in this section shall be construed to modify or otherwise affect any action for damages or the liability of any person under the laws of any State.”
- (c) EFFECTIVE DATE; APPLICABILITY. – The amendment made by subsection (a) shall
- (1) Take effect as if included in the enactments of the Medical Device Amendments of 1976 (Public Law 94-295): and
- (2) Apply to any civil action pending or filed on or after the date of the Act.
In other words, the law as currently written would apply retroactively to cases already on file. The bill is named after Ariel Grace who died at birth due to injuries caused by the Essure sterilization device.
This law is a long overdue remedy that would allow meritorious lawsuits to proceed and give injured consumers a remedy for the wrongs they have suffered.