Corporate Liability Shields

Apple reported the tragic consequences and injustice of federal preemption. The doctrine of federal preemption allows corporations to get away with unsafe practices and products. For example, Merck’s best-selling asthma medicine, Singulair, has been linked for years to suicides and psychiatric problems, especially in children. However, lawsuits over the drug are blocked by one of Corporate America’s most effective liability shields: the legal principle that federal law supersedes state law.

The doctrine of preemption is based on the U.S. Constitution’s supremacy clause. The original intent: to resolve conflicts between federal and state statutes and discourage state legislatures from passing laws that undermine federal policy. The FDA formally changed its view of preemption in a 2006 regulation, stating the agency now believed that FDA labeling approval “preempts conflicting or contrary State law.”

Corporations claim federally regulated products or services should be immune from lawsuits alleging state-law violations. The Conservative Supreme Court, in 2011 and 2013, essentially barred lawsuits against generic drugmakers based on state laws that enabled claims over design defects or a failure to warn consumers of potential dangers.

“Corporate preemption defenses have proved broadly effective, according to a Reuters analysis of court cases and dozens of interviews with attorneys, legal scholars and plaintiffs or potential plaintiffs affected by preemption rulings. The analysis of federal appeals and Supreme Court rulings involving preemption found that judges ruled two-thirds of the time to weaken or kill lawsuits alleging deaths or injuries caused by corporate negligence or defective products.”