ACSBlog recently featured an excellent piece by Allison Zieve, a staff attorney at Public Citizen who argued both of the last Supreme Court Term’s product liability preemption cases , Riegel v. Medtronic and Warner-Lambert Co v. Kent. Zieve raises a couple of very important points regarding regulatory agencies’ recent, and harmful support of preemption.

Chief among them is that federal regulation and state tort law have for decades functioned as complements, each providing a separate but necessary level of protection for consumers. For regulatory agencies like the FDA to now claim that state-law liability interferes with their work as regulators is therefore inconsistent with the historical record, as well as with the opinions of career agency experts.

More to the point, Zieve reiterates the indisputable value of the right of injured consumers to bring product liability lawsuits.
The possibility of being held liable for injuries caused by their products creates an invaluable incentive to companies to make sure that their products are as safe and effective as they can be before they bring them to market, to revise labels to warn of newly discovered hazards and to remove devices from the market when experience shows that they pose too great a risk to patients. Lawsuits also provide the sole means for patients injured by harmful devices to seek compensation—a particularly important function in a nation without national health or disability insurance. Lawsuits by injured consumers can have other positive effects as well. For example, a lawsuit over a defective heart valve led to the creation of a fund that not only provided compensation to patients, but paid for research to try to determine whether explant surgeries were worth the risk and helped to spur legislation to improve medical device regulation. Lawsuits involving certain bone screws brought to light information about the safety of these devices that the FDA had not seen before. Individual suits over injuries caused by the pain reliever Vioxx helped to change public perception and medical journal practices about the publication of industry-funded studies.
We certainly hope the Court considers the complementary federal-state consumer protection regime while deliberating this Term’s major product liability preemption case, Wyeth v. Levine, in which CAC has filed an amicus brief. For more on Wyeth and preemption, see our post-argument analysis of the case, as well as our preview explaining why a pro-preemption ruling in this instance would violate the text and history of the Constitution.