Medical device makers got some supreme protection yesterday. The highest court raised a partial shield against lawsuits,
saying that devices that passed the FDA's most stringent premarketing review are exempt from consumer lawsuits. Essentially, the justices ruled that federal law--i.e., FDA regulation--preempts liability under state law for these devices.
Can drugmakers anticipate their own celebration when the Supreme Court decides a couple of other preemption cases that
involve meds instead of a device? Don't buy the champagne yet, some legal experts say. In ruling for Medtronic yesterday,
the Court relied on a federal law specific to medical devices, not drugs. The Medical Device Amendments of 1976 set up detailed
requirements for FDA testing of devices, wrote Justice Antonin Scalia in the majority opinion, and prohibited states from
imposing different requirements.
The ruling will affect numerous outstanding lawsuits, but some pending cases will still be allowed to go forward; the
ruling doesn't keep consumers from suing if a device was made improperly, contrary to FDA specifications.
The Court will hear one drug-related case Monday and will consider another in October. Ironically, the justices are considering
these rules just as big questions have been raised about the FDA's ability to effectively regulate drugs and devices. Several
recent reports have castigated the agency for scientific shortcomings, outdated technology, and mismanagement. Experts say
the agency is way underfunded and understaffed. If the courts want FDA as our final authority, then shouldn't it be good at
- read the story in the Washington Post
- see this New
York Times article
- check out the NYT's take on preemption under an inadequate FDA
- find this Q&A with a consumer in a preemption case at Pharmalot
apply to drugs as well
Justices Shield Medical Devices from Lawsuits
By Linda greenhouse, February
WASHINGTON — Makers of medical devices like implantable defibrillators or breast implants are immune from liability for personal injuries as long as the Food and Drug Administration approved the device before it was marketed and it meets the agency’s specifications, the Supreme Court ruled on Wednesday.
The 8-to-1 decision was a victory for
the Bush administration, which for years has sought broad authority to pre-empt tougher state regulation.
In 2004, the administration reversed longstanding federal policy and began arguing that “premarket
approval” of a new medical device by the F.D.A. overrides most claims for damages under state law. Because federal law
makes no provision for damage suits against device makers, injured patients have turned to state law and have won substantial
The Bush administration will continue its push for pre-emption in another F.D.A. case that the
court has accepted for its next term, on whether the agency’s approval of a drug, as opposed to a device, pre-empts
personal injury suits. Drugs and medical devices are regulated under separate laws.
The case before the court concerned only medical devices that had gone through the premarket approval
process specified by the Medical Device Amendments of 1976. Most devices now available reached the market through a different
process, under which the F.D.A. found them to be “substantially equivalent” to those marketed before the 1976
law took effect.
The Supreme Court ruled in 1996 that this less rigorous approval process does not pre-empt state
damage suits against the manufacturers of “grandfathered” devices.
Devices subject to the premarket approval process, and thus affected by the court’s opinion,
tend to be more technologically advanced, expensive and, in some instances, risky.
Examples of devices that have been the subjects of recent lawsuits include an implantable defibrillator,
a heart pump, a spinal cord stimulator, a drug-coated stent, an artificial heart valve, and prosthetic hips and knees.
It was not immediately clear how many of the thousands of lawsuits against medical device manufacturers
would be affected, though some pending cases will almost certainly be nullified.
The decision, for example, does not foreclose lawsuits claiming that a device was made improperly,
in violation of F.D.A. specifications. Cases may also be brought under state laws that mirror federal rules, as opposed to
Next Monday, the court will hear another F.D.A. pre-emption case, on whether a state case can
be based on the claim that a drug maker committed fraud by misrepresenting or withholding information from the agency during
the approval process. The administration is supporting the
manufacturer in that case, Warner-Lambert Co. v. Kent,
No. 06-1498, which concerns the diabetes drug Rezulin.
Writing for the majority in Wednesday’s case, Riegel v. Medtronic Inc., No. 06-179, Justice Antonin Scalia said that permitting state juries to impose liability on the maker of an approved device “disrupts the federal scheme,”
under which the F.D.A. has the responsibility for evaluating the risks and benefits of a new device and assuring that it is
safe and effective for its intended use.
A jury, looking only at the injured plaintiff, will tend to weigh only the dangers of a device
and “is not concerned with its benefits,” Justice Scalia said, adding, “the patients who reaped those benefits
are not represented in court.”
The decision affirmed the dismissal of a lawsuit by a patient who was injured during an angioplasty when a balloon catheter burst while being inserted to dilate a coronary artery. The device won F.D.A. premarket approval
in 1994, two years before the incident. The patient, Charles R. Riegel, died after the lawsuit was filed, and the case was
carried on by his widow, Donna.
The medical device statute contains a pre-emption clause that bars states from imposing “any
requirement” related to a medical device that is “different from, or in addition to” a federal requirement.
The question of statutory interpretation at the heart of the case turned on what Congress meant by “any requirement.”
Justice Scalia said that state tort law, by imposing duties of care on product makers, amounted
to such an additional requirement. He said the 1976 law “speaks clearly to the point at issue,” regardless of
the federal government’s previous or current positions.
Justice Ruth Bader Ginsburg, the solitary dissenter, said the court had misconstrued Congress’s intent in adding the pre-emption clause to the
1976 law. The purpose, she said, was to prevent individual states from imposing their own premarket approval process on new
medical devices. Devices were not regulated under federal law at the time, and California
and other states had stepped in to fill the vacuum by setting up their own regulatory systems.
That was all that Congress had in mind, Justice Ginsburg said, not “a radical curtailment
of state common-law suits seeking compensation for injuries caused by defectively designed or labeled medical devices.”
She said that Congress had passed the 1976 law “to protect consumer safety,” not to oust the states from “a
domain historically occupied by state law.” The decision was at odds with the “central purpose” of the 1976
law, Justice Ginsburg added.
Crucial Democratic lawmakers appear to agree with Justice Ginsburg, including Senator Edward M. Kennedy, Democrat of Massachusetts, who heads the Health, Education, Labor and Pensions Committee and was the sole Senate sponsor
of the 1976 legislation in question.
“In enacting legislation on medical devices, Congress never intended that F.D.A. approval
would give blanket immunity to manufacturers from liability for injuries caused by faulty devices,” Mr. Kennedy said in a statement. He added:
“Congress obviously needs to correct the court’s decision.”
Representative Henry Waxman, the California Democrat who is chairman of the House Committee on
Oversight and Government Reform and was on the House panel that approved the 1976 bill, expressed a similar view.
“The Supreme Court’s decision strips consumers of the rights they’ve had for
decades,” Mr. Waxman said. “This isn’t what Congress intended, and we’ll pass legislation as quickly
as possible to fix this nonsensical situation.”
The Food, Drug and Cosmetic Act of 1938, under which the F.D.A. regulates pharmaceuticals, does not contain a pre-emption clause. Nonetheless, the administration is arguing in the case the court has accepted for
its next term, Wyeth v. Levine, No. 06-1249, that pre-emption is implicit in the structure of the statute.
The Supreme Court’s interest in pre-emption is not limited to the medical arena. In a similar
case decided on Wednesday, this one unanimously, the court ruled that the federal law that deregulated the trucking industry
in 1980 pre-empted two recent laws adopted by the State of Maine to regulate the shipment of tobacco products into the state.
The state laws were intended to prevent children who were not of legal age to buy cigarettes from ordering them over the Internet. The laws placed responsibility on shippers and delivery companies to verify the recipient’s
identity and age.
Justice Stephen G. Breyer, writing for the court in this case, Rowe v. New Hampshire Motor Transport Association, No. 06-457, said the state law “produces
the very effect that the federal law sought to avoid, namely, a state’s direct substitution of its own governmental
commands for competitive market forces” in a deregulated environment.
Barnaby Feder contributed reporting from New York
and Gardiner Harris from Washington.