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Brooks Schuelke
Brooks Schuelke
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Federal Preemption Part 3: A Products Liability Case Study As Example of Implied Preemption

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As you know, several Injuryboard attorneys are taking the month of October to discuss federal preemption. We started off with an overview of preemption and then posted earlier this week describing how express preemption might apply to claims. Today, we’ll look at another case study to provide an example of how implied preemption might occur.

The case we’ll use as an example is the 2002 U.S. Supreme Court case of Sprietsma v. Mercury Marine, which involved the design of boat propellors. The statute at issue was the Federal Boat Safety Act of 1971, which gave the Coast Guard the authority to create regulations establishing minimum safety standards for boats. Using this authority, the Coast Guard enacted a host of regulations that provided some mandates about safety equipment that boats must have.

In the late 1980s, the Coast Guard studied a potential requirement that would require recreational boats to provide propeller guards so that boaters weren’t cut by propellers. After an 18 month investigation, the Coast Guard decided that it was not going to make such a requirement, and no regulation was adopted.

Sometime after that, Jeanne Sprietsma was killed when she fell out of a boat and was mangled by a boat propeller. Her husband and her estate filed suit against Mercury Marine, the boat’s manufacturer, arguing that the boat design was defective because the boat didn’t have a propeller guard. According to the plaintiffs, failure to include this available safety device made the boat unreasonably dangerous as defined by Illinois law.

The Illinois Supreme Court ruled that the case was preempted by the Federal Boating Safety Act and the Sprietsmas’ claims were wiped out. Fortunately, they appealed to the U.S. Supreme Court, who held that the federal law didn’t impliedly preempt the state law claims.

The manufacturer argued for uniformity; it contended that allowing one state to say that no propeller guard was a defect and another to rule that having no propeller guard was okay put them in a difficult position. In rejecting this argument and the implied preemption, the Court noted

The concern for uniformity does not justify the displacement of state common-law remedies that compensate accident victims and their families and that serve the Act’s more prominent objective, emphasized by its title, of promoting boating safety.

The importance of this decision was huge. If the decision went the other way, then manufacturers would be off the hook whenever the federal government considered adopting a safety standard and decided not to do it. Lawsuits would have been wiped off the map in several areas, and products and the public would have been much less safe.

But that’s not the end of the story. Implied preemption will again be rearing its head this year when the US Supreme Court hands down an opinion in Wyeth v Levine. In that case, a guitarist lost her arm to gangrene allegedly as a result of taking a Wyeth anti-nausea drug. The plaintiff, which won a large jury verdict, contended that Wyeth should have provided better warnings about the potential gangrene as a side-effect. Wyeth claims that federal regulations preempt state law claims, and that because they comply with the federally mandated minimums, they can’t be sued. In essence, they are claiming, "look, we complied with the Food and Drug Administration warning requirements so we can’t be liable." Generally, courts in the past have held that the FDA requirements were a minimum, but they weren’t a ceiling. Thus, states could require other warnings (though tort law or other laws) as long as the requirements don’t directly contradict the federal requirements. But this Supreme Court has been more pro-preemption than others so it will be interesting to see how that case turns out later in the year.

We’ll have more on this issue later in the month.