Alternative Dispute Resolution
Access to Justice in Danger Before U.S. Supreme Court
Arthur H. Bryant S
ix years ago, Public Justice launched the Access to Justice Campaign to “expose, fight, and defeat the frontal assault now taking place on the right to a day
in court.” It has made an enormous difference – educating the public and winning major victories against federal preemption, mandatory arbitration, class action bans, attacks on the Constitution, right to counsel, and right to jury trial. Now, however, especially in the first three areas, access to justice is in danger before the U.S. Supreme Court.
Federal Preemption When the Access to Justice Campaign began, few
knew that the Court could grant corporate wrongdoers total immunity and eliminate injured consumers’ rights by ruling that a federal law “preempts” and wipes out all state laws that could hold the company accountable. In early 2008, however, the Court held in Riegel v. Medtronic that, because of federal preemption, millions injured by defectively designed medical devices could not sue the manufacturers at all. Tose people are now barred from court, unless Congress acts. Since then, only a slim margin in the Court has held
back federal preemption. In late 2008, in Altria Group, Inc. v. Good, the Court reaffirmed 5-to-4 the “presumption against preemption” and held that federal law does not preempt lawsuits against tobacco companies for misleading the public about the health benefits of “light” cigarettes. In 2009, in Wyeth v. Levine, the Court held that federal law does not preempt failure-to-warn lawsuits against prescription drug manufacturers.
But the battle is still raging. Tis term, the Court will
decide in Bruesewitz v. Wyeth whether federal law preempts claims against vaccine manufacturers for injuring people with defectively designed vaccines. New Justice Elena Kagan will not vote because, while Solicitor General, she filed an amicus brief for the government arguing that it does. We disagree. Te Vaccine Act says, “No vaccine manufacturer shall be liable in a civil action for damages arising from a vaccine- related injury or death... 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.” We think this language shows – and our amicus brief argues – that Congress did not preempt claims for injuries that were avoidable if a different, better design was used. With Justice Kagan not voting, a 4-to-4 split decision would uphold the ruling by the U.S. Court of Appeals for the Tird Circuit that vaccine design defect claims are preempted. Te Court will also decide this term, in Williamson v.
Mazda, whether federal law preempts claims against auto manufacturers by passengers injured because their rear center seats lacked shoulder harnesses. Te government says it does not – and that the lower courts are finding far too many claims preempted. We agree, but do not think the government’s brief goes far enough. Our amicus brief argues that the National Highway and Transportation Safety Act – which says, “Compliance with any federal motor vehicle safety standard shall not exempt any person from any liability under the common law” – precludes a finding that common law claims are preempted. It also urges the Court to rule,
Dr. Thomas K. Hyland Robertson 410.305.1331 •
info@wholechiro.com
A DIFFERENT APPROACH TO REHAB & WELLNESS Specializing in TMD & extremity problems
1202 Annapolis Rd. 2nd Floor, Suite I Odenton, MD 21113 Trial Reporter / Fall 2010 21
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