Judge Decries Preemption

Robert Blanchard

Attorney

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Finally, a beautiful and succinct statement from a Federal Judge on the real nature of the move to preempt state courts from having pharmaceutical liability lawsuits.. The two page Order is making the rounds among plaintiffs' attorneys, reassuring us that someone understands that Federal Preemption in drug cases is nothing less that an outright power grab by the federal government, brought to us by the party that used to advocate, hypocritically it appears, for the expansion of states' right and the diminishment of Federal power. Judge Wilson's supplement to his previous order denying preemption in the Prempro litigation is direct and to the point: "It appears to me that the expansive reading of preemption is part of an "overall assault on the citadel of the right to trail by jury'" (Quoting Cardozo). The Order also refers to this assault as "backdoor federalization." This is clearly true in light of the fact that there is nothing in the FDA enacting legislation that says state action (including state jury trials) is preempted. There is extensive history and precedent that there is no such preemption, but the Bush packed FDA (haven't they have done a great job by the way) ignored all that and issued a preamble to recent regulations (they couldn't get it to pass through standard rule procedures) saying the FDA now wants preemption.  They want no state to determine by jury trial or otherwise that a drug manufacturer was negligent in the marketing of its products. The powers that be seem intent on getting this piece of corporate payback through the courts, so unless we get a president who understands this injustice, the right to jury trial will no doubt be trampled by our U.S. Supreme Court.