Articles Posted in Federal Preemption

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David Sikkelee was killed when a Cessna aircraft he was piloting crashed after taking off from North Carolina’s Transylvania County Airport. The plane had a Lycoming engine. In the lawsuit, his wife, Jill Sikkelee, alleged that the aircraft lost power due to defects in the design of the engine and its carburetor.

The Federal Aviation Administration (FAA) had issued Lycoming a type of certificate for the engine, certifying that the design performs properly and satisfies federal regulations.

Jill Sikkelee brought strict liability and negligence claims against Lycoming alleging design defects. On appeal to the U.S. Circuit Court for the 3rd Circuit, it was held that her state-law claims were not barred based on the doctrine of field preemption. On remand, the federal district court concluded that the claims were conflict-preempted and that Lycoming was entitled to summary judgment on Sikkelee’s strict liability and negligence claims based on Pennsylvania law.

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This case was based on the distinction between brand name drugs and generics as decided by the U.S. Supreme Court in Wyeth v. Levine, 555 U.S. 555 (2009) and PLIVA v. Mensing, 564 U.S. 604 (2011).  The federal district court judge in Chicago, the Northern District of Illinois, dismissed failure-to-warn claims made against Pfizer, the manufacturer of Depo-T, a testosterone therapy that the Food and Drug Administration (FDA) classified as a generic drug.

In the Wyeth case, it was ruled that federal law does not pre-empt state law claims based on allegations that the manufacturer of a brand name drug failed to provide an adequate warning label. When a drug manufacturing company that produces a brand name drug realizes its warning label is inadequate, it can invoke a changes-being-effected regulation to immediately provide beefed-up warnings without prior FDA approval.

But because federal law requires the manufacturer of generic drugs to use the warning label approved for the brand-named version, Mensing ruled that conflict-pre-emption bars claims that the manufacturer of the generic version failed to provide adequate warnings.

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Mary Ann Nichols of Chicago has filed a federal lawsuit against the dietary supplement company NaturMed Inc., which is also known as Institute for Vibrant Living. Her suit alleges that the company violated federal and state advertising laws.

A federal judge decided against dismissing the class-action lawsuit against this company.

In the lawsuit, she accused the company of breaches of warranty and deceptive practices in the advertising of a drink supplement the company manufactures, All Day Energy Greens, after she found it did not achieve statements on the label that claimed it would increase energy and improve digestion.

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Peggy LeGrande, who worked as a flight attendant for Southwest Airlines, was injured when the plane she working in encountered severe turbulence. She brought a lawsuit against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §2674, claiming that the air traffic controllers employed by the Federal Aviation Administration (FAA) were negligent when they chose not to warn the flight’s captain that turbulence had been forecasted for the plane’s flight path.

At the federal district court level, the judge ruled that FAA employees did not breach any duty owed to Ms. LeGrande and granted summary judgment to the United States. On appeal to the Seventh Circuit Court of Appeals, the plaintiff sought reversal of the district court’s judgment.

On appeal and for the first time, Ms. LeGrande raised the issue that her injuries came from the negligence of a National Weather Service (NWS) meteorologist. Because the FAA breached no duty owed to Ms. LeGrande and because she failed to give NWS the written notice that the FTCA statute requires, the Court of Appeals affirmed the judgment of the district court.

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Federal preemption has long been a hot button issue in pharmaceutical drug cases, with consumer advocates arguing that drug companies should be held to the sometimes higher state standards. However, the U.S. Supreme Court appears to have reversed the federal preemption stance it took in Wyeth v. Levine. In Wyeth, the Court held that the negligence claim against the pharmaceutical company was not preempted by federal regulations and that the drug company was liable for its failure to provide adequate warning of its drug’s dangers.

However, in Pliva v. Mensing, No. 09-993, the Supreme Court ruled that a pharmaceutical manufacturer could not be sued under state law for failing to warn consumers about its drug’s risks. This decision seems to go against the Court’s ruling in Wyeth just two years ago; both lawsuits deal with federal preemption issues and involve states setting higher safety regulations than the Food and Drug Administration (FDA). Yet in Wyeth, the Court held the drug company responsible, while in Pliva, the Court ruled the pharmaceutical lawsuit was barred under federal preemption.

Yet on closer inspection, there appear to be some key differences between the facts surrounding the drug warning labels in Wyeth and Pliva. The main issue in both the Wyeth and the Pliva pharmaceutical cases involved an FDA regulation referred to as “changes being effected” (CBE). Under the CBE regulation, a drug manufacturer may modify its warning label without prior FDA approval if the modifications will improve the drug’s safety. Under CBE regulations, the FDA approval comes after the warning changes, not before; however, the assumption is that the warning changes in such matters are so important to consumer safety that the FDA will eventually approve those changes.

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The United States Supreme Court has ruled that a family is allowed to pursue its lawsuit in California against Mazda Motors of American, Inc. in the case of The Estate of Thanh Williamson v. Mazda, 08-1314. The product liability lawsuit deals with claims that the auto company’s 1993 Mazda MPV minivan were unsafe because the middle seat of the vehicle’s second row was only equipped with lap seat belts.

The wrongful death lawsuit was filed after Thanh Williamson, a Utah mother, died in a 2002 auto crash. Mrs. Williamson was seatbelted into the back middle seat of the family’s Mazda minivan at the time of the car crash. According to eyewitnesses of the car accident, the impact of the car crash caused Mrs. Williamsons’s body to jackknife around the lap seat belt, which resulted in her fatal internal injuries.

Again, central to the estate’s product liability claim was that the seatbelt the late Mrs. Williamson was using was not equipped with a harness or shoulder belt. However, this option is not required by federal regulations. While federal law does require that a vehicle’s front and rear outer seats come equipped with both lap and shoulder belts, car manufacturers may decide whether or not to also provide this option in their middle or aisle seats.

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An Illinois prescription drug case that originally had been dismissed due to issues of federal preemption, has been reinstated by the 7th Circuit Court of Appeals in Chicago. This case, Mason v. SmithKline Beecham Corp. d/b/a Glaxo SmithKline, No. 08-2265,___F.3d___, 2010 WL 605922 (7th Cir. Feb. 23, 2010) may be the first decision that addresses preemption with respect to prescription drugs.

The original Illinois prescription drug lawsuit was brought by the parents of 23 year-old Tricia Mason after she committed suicide just two days after being started on the prescription drug Paxil. The Illinois prescription drug lawsuit alleged that Paxil increases the risk in suicide in children and young adult, which the manufacturer should have known and therefore had a duty to warn its users.

The lawsuit alleged that GSK violated Illinois law by choosing not to warn Tricia Mason on its label that Paxil increases the risk of suicide for children and young adults. Two years after the decedent’s suicide, Paxil added a label warning of an increased risk of suicide among children taking the drug.

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The Moot Court Team of the John Marshall Law School of Chicago headed by Mary Nagel, their faculty sponsor, argued their moot court competition at Chicago’s Kreisman Law Offices before Civil Justice Attorney Robert Kreisman.

Moot Court is an activity where law students participate in simulated appellate court proceedings. However, moot court is actually more challenging than real appellate proceedings because students have to argue both sides of the critical issues in the case. The John Marshall Law School law students will be arguing both the appellant’s position and the appellee’s position in the national competition to be held in Cincinnati.

The issues of the fictional case involved pharmaceutical preemption by federal law, similar to those at issue in Riegel v. Medtronic, Inc and Wyeth v. Levine. The federal preemption issue revolves around whether or not warning language as to medical devices or pharmaceuticals approved by the Food & Drug Administration (FDA) are open to medical device liability lawsuits or product liability lawsuits under state law if those medical devices or drugs had been approved by the FDA. The law students also argued issues of punitive damages and constitutional law. The underlying case was on appeal to the supreme court from appellate level after a jury verdict of $900,000 was entered against the defendant pharmaceutical company. The appellate court denied a reversal of the compensatory damages, but remittur was allowed on the punitive portion of the verdict.

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In its recent ruling the U.S. Supreme Court ruled that premarket approval from the Food & Drug Administration (FDA) does not preempt pharmaceutical companies from being held liable when their drug fails to meet state standards. In Wyeth v. Levine the court held that drug manufacturers can be sued in state courts even when they follow the rules and standards set out by the FDA.

Wyeth v. Levine involves a female, Vermont musician who lost part of her right arm after Wyeth’s drug Phenergan was injected into one of her arteries. The drug’s FDA-approved warning label warned against administering the drug this way, but did not prohibit it.

Wyeth argued that they were not required to change their labels to comply with Vermont regulations and that meeting the federal standards was enough. Levine argued that she was able to bring a liability claim under Vermont law even though Wyeth complied with federal standards.

The key issue of the case was whether or not Levine’s claim was preempted since Wyeth met the federal standards. The Supreme Court ruled that the case was not preempted and that Levine is able to bring a claim under Vermont law.

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Federal scientists associated with the Federal Food and Drug Administration (FDA), have written to the Obama transition team of widespread managerial misconduct within the medical device review department. The letter alleged that “the scientific review process for medical devices at the FDA has been corrupted and distorted by current FDA managers.”
The letter came from the FDA’s Center for Devices and Radiological Health, which is responsible from reviewing medical devices ranging from stents and breast implants to MRIs and other imaging machinery. The letter alleges that the agency managers employed intimidation to thwart scientific debate, the result being that some medical devices were approved despite questions as to their effectiveness. Furthermore, the letter states that scientists were forced to “accept clinical and technical data that [was] not scientifically valid.”
The authors of the letter expressed concern with the lowered standards and the effects that an ineffective review process would have on consumers. Approval by the FDA carries a certain level of integrity and instills a certain level of trust in medical professionals and their patients. However, if that process has been corrupted or compromised then that trust is unwarranted.

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