President Obama this week has issued a product liability directive limiting the use of federal preemption to override state laws which allow injured victims to file lawsuits against the manufacturers of defective products for damages. The president has clearly stated that preemption of state law by executive departments and agencies should be undertaken "only with full consideration of the legitimate prerogatives of the states and with sufficient legal basis for preemption." Preemption of state common law will no longer be presumed or asserted by regulatory agencies absent "explicit preemption by Congress or an otherwise sufficient basis under applicable legal principles."

This is a major victory for the rights of all Americans under state law. It is also the culmination of over a decade of work by our friends at the American Association for Justice (AAJ) who have tirelessly fought for the rights of all Americans.

The legal concept of preemption has been in the news lately, particularly in two recent historic Supreme Court rulings. In Reigel v. Medtronic, the court held that companies that manufacture medical devices may not be sued in state courts for damages caused by product defects. In another different case, Wyeth v. Levine, the high court ruled that drug manufacturers can be held liable for personal injury damages caused by defective products.

President Obama's directive provides that:

  • Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
  • Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption.
  • Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption.

As AAJ President Les Weisbrod says, this is an enormous victory.

"It reflects what we believe the law in reality has always been and how it should always have been applied," Weisbrod says. "This corrects a decade of abuse of the regulatory process and signifies a triumph both for states' rights and for the legal rights of all Americans and their families."

There was no question that the preemption issue was a major assault on our civil justice system. Thanks to AAJ's efforts and the efforts of consumer attorneys and advocates around the country, we have fought this battle successfully. I commend the AAJ for their leadership on this important issue.

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