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recent reports have castigated the agency for scientific shortcomings, outdated technology, and mismanagement.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
its job?
- 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
This will
apply to drugs as well
Justices Shield Medical Devices from Lawsuits
By Linda greenhouse, February
21, 2008
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 awards.
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 supplementing them.
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.
