Tag Archives: preemption

Arizona immigration law challenge could end in a tie

Gov. Jan Brewer and attorney Paul Clement, far right, leaving the Supreme Court Wednesday after oral arguments in Arizona v. U.S. (Photo: Kimberly Atkins, Lawyers USA)

There is bad news and good news for the Obama administration as it seeks to have Arizona’s controversial immigration enforcement law SB 1070 struck down by the U.S. Supreme Court.

The bad news: four out of the eight justices who heard the case today seemed to side squarely on the side of Arizona officials who say the state statute does not conflict with federal immigration law. (Justice Elena Kagan recused herself, likely because she was involved in the challenge while she was Obama’s solicitor general).

If, as it seemed, Chief Justice John G. Roberts, Jr. and Justices Antonin Scalia, Samuel Alito and presumably Clarence Thomas (Thomas does not speak during oral arguments, but he is a vocal opponent of the doctrine of implied preemption) are inclined to rule in favor of the state, the best the federal government can do in its challenge is tie – assuming noted swing voter Justice Anthony M. Kennedy votes in the administration’s favor.

But the good news is that a tie would be a win in this case. If the Court splits, the case goes back to the 9th Circuit, which has already given a strong indication that it would strike down the law when it upheld a preliminary injunction preventing the law from going into effect.

Much more on the arguments later on Lawyers USA online.

Supremes OK seatbelt suit over preemption challenge (access required)

In the first of two opinions issued today, the Supreme Court allowed a tort suit against Mazda claiming that the auto manufacturer should have installed lap-and-should belts in its vehicles to move forward, finding the claim was not preempted by federal law.

In Williamson v. Mazda Motor of America, the Court allowed the suit by the family of a passenger killed in an auto accident to proceed, finding that the Federal Motor Vehicle Safety Standard 208, which allows auto manufacturers to install either lap-and-shoulder constraints or simple lap belts in inside rear seats of passenger vehicles, did not bar a state tort lawsuit.

The Court also held in Walker v. Martin that California’s requirement that habeas petitions be promptly filed qualifies as an independent state ground for denying habeas relief.

Read more on the Mazda case and its implications in the coming days on Lawyers USA online.

Justices go to “Conjunction Junction” in vaccine preemption ruling (access required)

In answering the question of whether state-law design defect claims against vaccine makers are preempted by state law, the justices of the Supreme Court seem to have looked at the relevant statute and asked themselves the question from the “Schoolhouse Rock!” song: Conjunction Junction, what’s your function?

(Press play and sing along as you read the rest of this post, if you like.)

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In this morning’s ruling in Bruesewitz v. Wyeth – holding that such claims are preempted – Justice Antonin Scalia’s majority ruling as well as Justice Sonia Sotomayor’s dissenting opinion focused on two conjunctions in the National Childhood Vaccine Injury Act: “if” and “even though.”

The relevant statutory text, §22(b)(1), is:

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. (Emphasis added).

In determining just what kind of side effect is “unavoidable” under the Act, Scalia parsed the meaning of the “even though” clause.

The “even though” clause clarifies the word that precedes it. It delineates the preventative measures that a vaccine manufacturer must have taken for a side-effect to be considered “unavoidable” under the statute. Provided that there was proper manufacture and warning, any remaining side effects, including those resulting from design defects, are deemed to have been unavoidable. State-law design-defect claims are therefore preempted.

If a manufacturer could be held liable for failure to use a different design, the word “unavoidable” would do no work.

Sotomayor, whose dissent was joined by Justice Ruth Bader Ginsburg, had a different view.

Blackletter products liability law generally recognizes three different types of product defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn). The reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper directions and warnings” is an obvious reference to two such defects-manufacturing and labeling defects. The plain terms of the “even though” clause thus indicate that §22(b)(1) applies only where neither kind of defect is present.

…The only remaining kind of product defect recognized under traditional products liability law is a design defect. Thus, “side effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were “unavoidable.”

The Court also ruled in CSX Transportation v. Alabama Department of Revenue that a railroad carrier may challenge a non-property tax on the grounds that the tax contains discriminatory exemptions.

Court returns to hear preemption, ineffective assistance cases (access required)

After observing the Columbus Day holiday yesterday, the U.S. Supreme Court is back in action today to hear oral arguments in three cases – including one involving an issue of great interest to trial lawyers and business groups alike: preemption.

This afternoon the Court will hear arguments in Bruesewitz v. Wyeth, which considers whether the National Childhood Vaccine Injury Act expressly preempts state tort claims based on injuries suffered as a result of a polio vaccine. The case could have a major impact on hundreds of product liability lawsuits against vaccine makers claiming a causal connection to autism.

But first, the Court will hear two cases that consider just when a convicted criminal defendant can claim ineffective assistance of counsel on appeal.

In Harington v. Richter the Court will decide whether a criminal defendant is denied the effective assistance of counsel when his lawyer chooses methods other than expert testimony to create a reasonable doubt of guilt. And in Premo v. Moore, the Court will decide if an attorney’s failure to suppress a defendant’s alleged coerced confession warrants post-conviction relief.

Meanwhile, in other Supreme Court-related news:

TV talk: While Justice Stephen Breyer believes its important for Americans to see robed Supreme Court Justices at the president’s State of the Union address, he’s not so sure it’s a good idea for cameras to be in the courtroom – in part because it could lead to “television in every criminal trial in the United States and witnesses [becoming] afraid to appear.” (AP)

The popular crowd:  The Supreme Court has a 51 percent approval rating – making it far more popular than the president (44 percent) or Congress (18 percent). (Gallup)

The trouble with specialists? While there are more Supreme Court practice specialists than ever, there is a growing tension between that group and the public interest lawyers who sometimes question if clients’ interests are always being put first. (The New York Times).

Supreme fashion police: And here is he obligatory story about Justice Elena Kagan’s decision not to don frilly white neckwear with her black robe, care of The Washington Post‘s Robin Givhan. At least she also scrutinized what the male justices wore in the Court’s official photo session. (Washington Post)

With Stevens gone, will Thomas be the Court’s biggest preemption foe? (access required)

When the Supreme Court opens its term next month, the absence of retired Justice John Paul Stevens will be felt in many ways – particularly when the Court takes up several cases dealing with the issue of federal preemption of state law claims and regulations, experts say.

“Justice Stevens has been, up to this point, the voice against preemption,” said Eric G. Lasker, a partner in the Washington office of Hollingsworth LLP, speaking at a Supreme Court media briefing yesterday hosted by the Washington Legal Foundation.

Michael A.Carvin, a partner in the Washington office of Jones Day, echoed that sentiment yesterday at a Supreme Court discussion panel hosted by the American Constitution Society for Law and Policy.

Justice Stevens has been the most reliable anti-preemption vote,” Carvin said.

The Court’s newest jurist, Justice Elena Kagan, has indicated that she will recuse from two major preemption cases being taken up this fall. In Williamson v. Mazda Motor of America, the Court will consider whether a tort claim against a manufacturer for choosing not to install a combination lap/shoulder belt in a vehicle’s middle backseat is impliedly preempted by a federal motor vehicle regulation. In Bruesewitz v. Wyeth, the Court will take up the question of whether the Vaccine Act expressly preempts all vaccine design defect claims, regardless of whether the vaccine’s side effects were unavoidable. That matter involves a plaintiff who alleged that she suffered seizure disorders as a result of taking a polio vaccine as a child. (More on the potential effect of Kagan’s recusals in those cases can be found here from Lawyers USA)

So which justice or justices might emerge as the new voice against preemption in Stevens absence?

On the issue of express preemption, experts say Justice Ruth Bader Ginsburg may take the anti-preemption baton, given her past opinions.

But on the issue of implied preemption, states and plaintiff’s attorneys may have an unlikely ally: Justice Clarence Thomas.

“Justice Thomas has been consistent in his opposition to the idea of implied preemption,” Lasker said.

Thomas was part of the majority in the landmark implied preemption case Wyeth v. Levine holding that state law drug claims are not automatically preempted by federal regulation. But Thomas also wrote a separate concurrence in that case because, as he wrote, “I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines [because] implied preemption doctrines that wander far from the statutory text are inconsistent with the Constitution.”

Friday morning docket: 9/11 trial will be in federal court

The Obama administration will announce today that accused Sept. 11 attacks mastermind Khalid Sheik Mohammed and three alleged co-conspirators will be tried in federal court in New York instead of a military commission.

Attorney General Eric Holder is expected to make a formal announcement at a press conference later today.

President Obama, speaking to reporters in Japan, said the federal trial will come with the same accountability standards as a military trial. “I am absolutely convinced that Khalid Sheik Mohammed will be subject to the most exacting demands of justice,” Obama said. “The American people insist on it, and my administration will insist on it.”

More on the developing story from The Washington Post and The New York Times.

In other legal news,

Preemption problems: “Mess,” “Muddle” and “chaos” were words used do describe the state of the doctrine preemption after the Wyeth v. Levine decision – by people on both sides of the issue – at the Federalist Society’s National Lawyers Convention. (The BLT)

Med-mal HIPAA change: Medical malpractice defense lawyers may not know that they are likely covered by new HIPAA rules on privacy breaches of health data. (Lawyers USA)

Massey overturned again: For a third time, the West Virginia Supreme Court has overturned a $50 million judgment against Massey Energy – the case that went all the way to the Supreme Court, which ordered a rehearing of the case without the judge who received campaign contributions made by Massey’s CEO. (Charleston Gazette)

Gitmo casualty: Sources tell The Washington Post that White House Counsel Gregory Craig will resign as early as today, ending a tenure marred by the struggle to close the Guantanamo Bay detention center. (WaPo)

Trial attorney group, tobacco company react to high court ruling

cigaretteAfter yesterday’s surprise Supreme Court decision in Altria Group v. Good, a 5-4 ruling that state law claims that tobacco companies deceptively market “light” or “low tar” cigarettes are not preempted by federal law, reaction was swift.

The trial lawyers’ group the American Association for Justice lauded the decision, saying it protected consumer’s rights.

“Today’s decision is a victory for consumers and affirms that cigarette manufacturers cannot claim immunity from consumer fraud when they claim their products have lowered tar and nicotine levels, even though they do not,” AAJ President Les Weisbrod said in a statement. “State laws have an important role to play in helping the federal government police false claims, and today’s decision supports that role.”

Weisbrod went on to say he hopes the Court will follow the same reasoning in future cases. Another closely-watched preemption case involving claims over FDA-approved drugs, Wyeth v. Levine, is still pending.

The tobacco company Altria expressed disappointment in the decision. But it also pointed out that the case has yet to be decided on the merits.

“While we had hoped for a dismissal based upon federal preemption, it is important to note that the Supreme Court made no finding of liability,” said Murray Garnick, Altria Client Services senior vice president and associate general counsel. “We continue to view these cases as manageable, and the company will assert many of the strong defenses used successfully in the past to defend against this very type of case.”