also both bring to light the willingness of a federal agency charged with the public’s safety to change its position from administration to administration on the question of whether state claims are preempted by federal regulations. Te FDA in recent years (the Bush era) altered its historical position against preemption of state law claims to a position favoring preemption. Given that inconsistency, the FDA was not accorded substantial deference in either decision, nor should it have been. Te safety of the public should not depend on political transitions.


Unless and until the MDA is amended, its express


preemption clause will unfortunately be read by many courts to bar most state claims pertaining to defective medical devices based on anything other than a violation of FDA regulations. Drug manufacturers continue to press for approval of an express preemption clause for the FDCA. Te MAJ and the American Association for Justice must continue its fight to prevent further erosion of state common law actions aimed at protecting the consumer both in the legislative arena82


and


in federal and state courts. If we are not ever-vigilant, who will be? 


Biography Leslie Hayes Russo is a trial attorney and appellate


advocate. She is a partner at Otway Russo, LLP in Salisbury, Maryland. She focuses her plaintiffs’ practice on serious personal injury, medical malpractice, and product liability actions. Ms. Russo has handled numerous appeals to Maryland’s Courts of Appeal. Her appellate victories include a decision affirming a substantial verdict in a defective product case alleging failure to warn of the dangers to passengers of using a reclined seat when the vehicle is in motion (Toyota Motor Corporation v. Kumar). Recently, she won an appeal on behalf of members of a volunteer fire company, the Court of Special Appeals holding that genuine issues of material fact had been demonstrated on the question of the application of exceptions to the Fireman’s Rule (IWIF v. Eastern Shore Gas Company). She is President of the Women’s Bar Association for the Lower Eastern Shore. Ms. Russo is the author of numerous articles and


treatises. She co-authored Te Products Liability Law Manual (MICPEL 2d Ed.)(2003), the leading legal treatise in Maryland on the law related to defective products. She is


also a contributing author to the leading book on Maryland 82 Congressman Henry Waxman has sponsored legislation (the “Medical Device Safety Act of 2008”) to amend the MDA to include a provision which states that, “Nothing in this section shall be construed to modify or otherwise affect any action for damages or the liability of any person under the law of any State.”


Trial Reporter / Winter 2010 43


appeals, Appellate Practice for the Maryland Lawyer: State and Federal (1st and 2nd eds. MICPEL). Her works are also cited in other leading treatises, including Pleading Causes of Action in Maryland (Paul Mark Sandler, 3d ed. 2004). Amy Taylor Sevigny joined Otway Russo in August 2009 and is a graduate of Cornell University and University of Baltimore School of Law. Prior to joining Otway Russo, Ms. Sevigny spent 8 years working in sales and marketing for major hotel corporations. Additionally, she served as Editor- in-Chief for the Journal of Environmental Law, worked for solo practitioner in Baltimore doing civil


litigation prior


to and during law school, and served as Law Clerk to the Honorable Daniel M. Long of Somerset County, Maryland. Ms. Sevigny is also works with the Make A Wish


Foundation volunteer as a wish granter, and is a volunteer for Cornell’s Alumni Admissions Ambassador Network, interviewing high school applicants who have applied for admission to Cornell. Ms. Sevigny has two children, Turner, 3 years old and Louisa, 1 year old, with her husband, Marc.


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