76 J. Kan. Bar Assn. 7, 32 (2007). Federal Preemption in Products Liability Cases.

• Author: By Stephen J. Torline and Derek Teeter

Kansas Bar Journals

Volume 76.

76 J. Kan. Bar Assn. 7, 32 (2007).

Federal Preemption in Products Liability Cases

Kansas Bar JournalVolume 76, July/August 200776 J. Kan. Bar Ass'n 7, 32 (2007)Federal Preemption in Products Liability CasesBy Stephen J. Torline and Derek TeeterI. Introduction

Federal preemption is rooted in the Supremacy Clause of the U.S. Constitution: "This Constitution, and the Laws of the United States, which shall be made in Pursuance thereof ... shall be the supreme Law of the Land."1 The U.S. Supreme Court has held that "state law is pre-empted to the extent that it actually conflicts with federal law."2 Accordingly, a defendant in a products liability case has a sure defense to liability if a federal law preempts a conflicting state law.3 Preemption can apply to state statutes, regulations, or common law damages actions.4 The federal preemption defense has become particularly important in products liability litigation. To date, the defense has been most successful in cases involving chemicals,5 health care products,6 consumer goods,7 and vehicles,8 but it continues to be asserted in a growing number of cases involving a wide range of products. As one commentator notes, "the defense of federal preemption in recent years has grown from little more than a blip on the radar screen to one of the most powerful defenses in all of products liability law."9 The power of this defense in Kansas was illustrated in Jenkins v. Amchem Products,10 where the Kansas Supreme Court held that federal law preempted a plaintiff's failure to warn claims against the maker of the popular herbicide 2,4-D.

This article discusses the doctrine of federal preemption generally and the history of its application in products liability lawsuits involving various types of products. It also discusses the interplay between federal preemption and administrative regulations under the important U.S. Supreme Court case Chevron USA v. Natural Resources Defense Council Inc.11 It concludes by reviewing the limited relevant precedent developed in Jenkins and other Kansas cases and highlights some federal statutes and regulations that could be relevant to Kansas practitioners.

2. The Theory of Federal Preemption

   There are two types of federal preemption: (1) express preemption and (2) implied preemption.12 Express preemption arises when a federal statute or regulation actually contains preemptive language.13 Implied preemption arises in the form of field preemption or conflict preemption.14 Field pre-emption occurs when "federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it."15 Conflict preemption occurs when "compliance with both federal and state regulations is a physical impossibility" or "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."16

   Federal preemption is an affirmative defense, so the defendant bears the burden of demonstrating the preemptive effect of federal law.17 In reality, this burden is substantial, because it requires the defendant to demonstrate that Congress intended a particular statute or regulation to have preemptive effect.18 Consequently, whether the defense asserted is express or implied preemption, the defendant must often utilize the canons of statutory construction to convince the court of the preemptive effect of federal law.19 Given the technical complexity and length of many federal statutes and regulations, it requires a sound grasp of technical subject matter to articulate the preemption argument and a good deal of research to support that argument with convincing authority.

   Until 2000, it was clear that defendants had to overcome a heightened "presumption against preemption" in addition to meeting their substantive burden to show congressional intent.20 This presumption rested upon the notion that "the historic police powers of the state were not to be superseded ... [absent] the clear and manifest purpose of Congress."21 Justice John Paul Stevens characterized the presumption as a "limiting principle" that prevented federal courts from applying preemption too aggressively.22 When coupled with the general reluctance of state courts to deny plaintiffs a remedy, this presumption against preemption was a difficult hurdle to overcome, especially for defendants in state courts. As discussed later in this article, recent Supreme Court decisions have, at the least, weakened the presumption against preemption, if not eliminated it altogether.

   1. Express federal preemption

      A federal statute or regulation may expressly preempt certain state law claims by its very language. Similarly, such a statute can preserve state law claims by expressly forbidding preemption. Accordingly, two types of clauses are relevant in express preemption cases: (1) preemption clauses and (2) savings clauses.23 An example of a preemption clause can be found in the Cigarette Labeling and Advertising Act of 1969, which states that "[no] requirement or prohibition based on smoking and health shall be imposed under state law with respect to the advertising or promotion of any cigarettes, the packages of which are labeled in conformity with this chapter."24 In Cipollone v. Liggett Group Inc., the U.S. Supreme Court held that this preemption clause precluded a plaintiff 's inadequate warning claim because such a claim constituted a "requirement" that was expressly preempted by the statute.25

      In contrast, an example of a "savings clause" can be found in the National Traffic and Motor Vehicle Safety Act of 1966, which states that "[c]ompliance with any [f]ederal motor vehicle safety standard issued under this subchapter does not exempt any person from any liability under common law."26 While that savings clause has since been repealed, the Supreme Court held that it removed tort actions from the scope of the statute's express preemption clause.27

      The most difficult express preemption cases are those involving statutes that contain both a preemption and a savings clause. For example, the National Traffic and Motor Vehicle Safety Act of 1966 also contains an express preemption clause prohibiting states from enacting "any safety standard ... which is not identical to the Federal standard."28 In Geier v. American Honda Motor Co.,29 the Court concluded that whatever the scope of the express preemption clause, the act's savings clause permitted state common law damages actions that imposed a higher standard than federal law.30 Even if, however, a court can resolve conflicting express preemption and savings clauses, it must address implied preemption as a separate and independent analysis because a particular federal statute can still give rise to implied preemption even though the challenged state cause of action is beyond the reach of the federal statute's express preemption clause.31

   2. Implied federal preemption

      Implied preemption analysis necessarily presumes the absence of any relevant express preemption. As noted previously, implied preemption can occur as either field or conflict preemption. Field preemption occurs either when there is an extremely pervasive federal regulatory scheme or where the subject matter of some field invokes a dominant federal interest such that preclusion is presumed.32 The Occupational Safety and Health Act33 is a well-known federal law that defendants frequently argue is so pervasive that it forms the basis of field preemption in products liability cases.34 By example, dominant federal interest preemption has been asserted (so far unsuccessfully) by vaccine manufacturers as a defense to defective design claims.35 In one case, the manufacturer of a pertussis vaccine unsuccessfully argued that a federally sponsored program of inoculation triggered dominant federal interest preemption.36

      Similarly, implied conflict preemption takes two forms. The first is where a defendant finds it impossible to comply with both federal and state law. For example, in R.F. and R.F. v. Abbott Laboratories,37 the New Jersey Supreme Court held a plaintiff's failure-to-warn claim was preempted by Food and Drug Administration (FDA) guidelines. In that case, the plaintiff alleged that the maker of an HIV test should have warned that borderline testing results were inherently uncertain and dangerous.38 Because the FDA essentially dictated the warnings the maker was allowed to offer, and severely restricted its ability to offer additional warnings, the court found an implied conflict.39 Likewise, conflict preemption can occur when compliance with state law constitutes an obstacle to some federal objective. At least one court has used this type of preemption to preclude a claim that cigarettes are unreasonably dangerous per se because such a ruling would obstruct Congress' decision not to foreclose the sale of tobacco products.40

   3. The presumption against preemption (or lack thereof)

      Until recently, the Supreme Court espoused a presumption against preemption that rested on the notion that "the Constitution constrains the federal government, the powers of which are limited and specifically enumerated."41 The Supreme Court discussed this presumption in the first two products liability preemption cases it addressed, Medtronic Inc. v. Lohr 42 and Cipollone.43 In Cipollone, the Supreme Court held that state failure-to-warn claims against cigarette makers were expressly preempted by the Cigarette Labeling...