The Appellate Corner
| Publication year | 2011 |
| Pages | 0199 |
| Citation | Vol. 72 No. 3 Pg. 0199 |
WILSON F. GREEN
wgreen@fleenorgreen.com
The Big Story: The U.S. Supremes Dance the Preemption Paso Doble
In late February 2011, the United States Supreme Court premiered a preemption two-stepper of opinions which provide civil tort and product liability lawyers, as well as constitutional scholars, with much to study. The two decisions, issued consecutively on February 22nd and 23rd, turn on different modes of preemption (express preemption vs. conflict preemption), but both concern state tort law claims in product liability contexts.
Construing an Express Preemption Statute
Bruesewitz v. Wyeth LLC, 131 S.Ct. 1068 (U.S. Feb. 22, 2011) This was a vaccine-injury case involving a child who had suffered developmental injuries after being administered the DTP vaccine. At issue was whether the National Childhood Vaccine Injury Act of 1986 ("NCVIA"), 42 U.S.C. § 300aa, preempted all state-law claims alleging that a vaccine was defectively designed. The case turned on the statutory construction of the preemption/immunity provision in the NCVIA, found at 42 U.S.C. § 300aa-22(b)(1):
No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine-related injury or death associated with the administration of a vaccine after October 1, 1988, if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions and warnings.
The plaintiff contended that this statute did not bar all design defect claims, specifically those premised upon allegations that an alternative design had adequate efficacy without the injurious side effects suffered by the plaintiff. The defendant countered that the statute barred all design defect claims, so long as the vaccine was "properly prepared" (i.e., there were no manufacturing defects) and was "accompanied by proper directions and warnings" (i.e., there were no failures to warn).
In a 7-2 decision, the Court adopted the defendant's view, concluding that all design defect claims were barred by the statute, assuming no manufacturing or warning issues. Justice Scalia's majority opinion reasoned that the language following the word "unavoidable" in the statute ("even though the vaccine was properly prepared" et seq.) describes what is meant by being "unavoidable"-in other words, a side effect is "unavoidable" when it is present even after proper manufacturing has occurred and proper warnings provided.
Justice Scalia criticized the dissenting view of Justice Sotomayor (joined by Justice Ginsburg), who interpreted the word "unavoidable" according to its (argued) plain meaning-that is, "unavoidable" means incapable of being avoided, a standard which would allow for an action based on a safer alternative design. The dissent also interpreted "unavoidable" as being consistent with the "unavoidably unsafe product" standard in Restatement of Torts (Second) § 402A, comment k, which contemplated the unavailability of an alternative design with similar efficacy without the harmful side effect.
Perhaps most notably, the Scalia-led majority found no apparent textual ambiguity in the statute which might lead to an examination of legislative history. For the majority, the text and structure of the NCVIA settled the question.
Seat Belts and Conflict Preemption
Williamson v. Mazda Motor of America, Inc., S.Ct. 1131 (U.S. 2011)
This case involved allegations that the rear-aisle seat in a minivan was defectively designed because it contained a lap belt, rather than a lap-and-shoulder belt. The California state...
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