Comments on: Bill Would Eliminate Preemption In Device Suits

By: Justice in Michigan

Justice in Michigan — Sat, 07 Jun 2008 17:54:42 +0000

Good to see a reasonable response. The realities are that the best, most deserving cases tend not to be brought. I am for reform as some have suggested above.

But the nuclear option of preemption will hurt everyone - including the industry - very badly indeed.

By: laura

laura — Fri, 06 Jun 2008 00:53:40 +0000

HorusCat,
You’re right. We need to find a mechanism to weed out the frivolous lawsuits. Preemption, however, is not the mechanism. In allowing preemption, we are disallowing accountability. I’m not sure what the answer is, but I’m certain that it is not preemption.

By: HorusCat

HorusCat — Fri, 06 Jun 2008 00:34:53 +0000

laura,
Your points are well made. Unfortunately, there is no mechanism for weeding out the frivolous from the well-founded lawsuits. That doesn’t mean worthy suits shouldn’t be brought, it just means we have to come up with a process that saves the time, money and energy of dealing with the frivolous actions while preserving the juridical platform for the meritorious suits. Maybe a review committee of the kind that some states have for medical malpractice–made up of all the affected constituents (lawyers, consumers, doctors, device-makers).

By: laura

laura — Fri, 06 Jun 2008 00:24:43 +0000

AV Block,
I’m just wondering, how much do you really know about medical device preemption? From your post, I get the feeling that you’re comment is the same reaction that I would have had two and a half years ago, before my mother was killed by a medical device that she didn’t ask for and didn’t need. I felt like you do…all lawsuits are frivolous, litigants are just looking for a way to make a quick buck, all plaintiff’s lawyers are “ambulance chasers”. This feeling is fed by the McDonald’s spilled coffee lawsuit, the midday television ads begging for people to call if they have a hangnail, your next door neighbor telling you that they’re going to sue because your tree hangs over the property line and it’s spilling apples into their yard. You are absolutely right in your assumption that there are way too many lawsuits out there that shouldn’t be…in your endorsement of preemption, however, you are not considering the many lawsuits that serve a very real purpose. These lawsuits bring to light major oversights and, many times, major cover-ups that occur in the medical device industry. Preemption preempts the frivolous lawsuits, of which, I agree, there are many, but it also preempts the very important lawsuits that hold medical device companies accountable for the products that they are placing on the market. Essentially preemption is throwing the baby out with the bathwater. I’m sure that there are ways that the government can address frivolous lawsuits. To prevent all lawsuits just because frivolous lawsuits exist, however, is immoral. I would also like to remind you that medical device companies also employ lawyers and their lawyers are probably just as “greedy” as the plaintiff’s lawyers.

By: Jaynesday

Jaynesday — Thu, 05 Jun 2008 23:49:01 +0000

Or is it a correction of a profitable and insanely dangerous opportunity for greedy corporate lawyers?

By: AV Block

AV Block — Thu, 05 Jun 2008 21:39:26 +0000

this will never get passed. it smells like another profitable opportunity for greedy lawyers.

By: Justice in Michigan

Justice in Michigan — Thu, 05 Jun 2008 19:02:16 +0000

At the risk of overly parsing, I would suggest that the bill does not intend to “bypass” the Sup. Ct. ruling, but to reinstate Congressional intent in MDA (Medical Device Act(as originally passed). As most of its sponsors agree, that intent was to prevent states from setting up genuinely competing regulatory schemes, putting manufacturers in the position of having to meet competing regulatory requirements.

There was never the thought, at that time (including at the FDA), that state tort liability could be considered a competing regulatory scheme. Indeed, in virtually every case, the two systems complemented and strengthened each other.

The alternative view is pretty much the handiwork of the trial lawyers who work for the device industry. I understand eight Supreme Court justices agreed, in one form or other, in Riegel. History is like that, including the history of the Court.

In any case, this is not a constitutional issue but one of clarifying legislation. So it is entirely within Congressional purview to clarify the laws it passes when that becomes necessary. No bypassing involved (except perhaps the Court’s end-run around Congress).

By: Jaynesday

Jaynesday — Thu, 05 Jun 2008 10:48:24 +0000

This should be interesting. Maybe we will see a 4th of July fireworks display.
Congress v Supreme Court
Demacrats v Republicans,
Individuals v Corporations
Due Process v Torte Reform