Stealth tort 'reform' unveiled.

The U.S. Supreme Court and Congress will soon face head-on a critical issue--regulatory preemption--that, depending on how it is resolved, could provide negligent corporations complete immunity from lawsuits. But surprisingly, most Americans and many policymakers have never heard of it.

Regulatory preemption is truly a stealth issue. It began quietly and without much fanfare after President Bush's second inauguration. Then, federal agencies--without any authority from Congress--started putting language in the preambles of regulations declaring that they preempt state tort law. So far, seven federal agencies have issued over 51 potentially preemptive rules, often without any opportunity for public comment.

While regulatory preambles are generally considered advisory, some trial courts have given them the force of law and have dismissed valid lawsuits. Other cases--like a train derailment case in California hang in the balance.

On January 26, 2005, a Metrolink commuter train was traveling from Simi Valley to Los Angeles when the engineer noticed a car parked on the tracks. He hit the brakes, but the train slammed into the car, causing the train to derail into the path of another Metrolink train traveling in the opposite direction. Eleven passengers died, and about 150 were injured.

Even though Congress passed legislation in July 2007 preserving the rights of injured passengers to hold negligent railroads accountable, the Federal Railroad Administration (FRA) four days later issued a proposed rule on passenger safety equipment standards that would give commuter train companies immunity from lawsuits. If courts defer to the FRA's preamble, injured passengers would be prevented from seeking compensation.

The idea that if minimum federal standards are met all state tort claims should be discarded is a direct affront to the authority of state courts, state legislatures, and Congress. State remedies were designed to complement, not conflict with, federal health and safety regulations.

The Supreme Court will rule on the issue of preemption as it relates to prescription drug labeling next term in Wyeth v. Levine. Almost eight years ago, Diana Levine, a musician, was wheeled into a Vermont health clinic with a severe migraine headache and nausea. Clinic staff gave her the antinausea drug Phenergan by IV push, an off-label method of administration. The drug destroyed an artery in her arm, which had to be amputated below the elbow.

Levine sued the drug maker, Wyeth Pharmaceuticals, claiming the company failed to warn of the risks of giving Phenergan by IV push even though it knew that health care workers were using this method. Wyeth claims that since the FDA had approved the drug's labeling instructions, victims such as Levine are barred from holding the company accountable.

Protecting consumer safety requires both government regulation and civil justice remedies. Regulations alone aren't perfect and can't anticipate every problem, which is why unsafe-product lawsuits remain an important safeguard. The civil justice system offers corporations a powerful incentive to make their products safer. All people should have a fair chance to receive justice through the legal system when they are injured by negligence or misconduct--even when it means taking on the most powerful corporations.

Final note

This past year I have had the distinct pleasure of serving as your president. I have traveled across this country visiting trial lawyer associations from Alaska to Arizona, California to New York, Maine to Florida, and many places in between. I have seen firsthand the difference our members, who dedicate their professional lives to fighting for justice, can make.

It has been extremely rewarding to work side-by-side with our incredibly talented and hard-working AAJ staff in Washington, D.C.

I offer my sincere thanks to the members of the Executive Committee and AAJ Board of Governors for their unswerving dedication to the mission of our association; to my colleagues and partners who have permitted me to take so much time away from the practice of law this past year; and to my family, whose support this year has been invaluable.

I ask each of you to join with me in continuing our fight for justice by supporting the work of our incoming president, Les Weisbrod.

Thank you for making me so proud to have served this year as president of the American Association for Justice. You, my fellow trial lawyers, are the finest people and the best friends I have known!