Federal preemption of state laws is a dry subject. It puts lawyers and law students asleep.
However, the consequences of preemption can be both real and significant.
The Supreme Court recently in Riegel v. Medtronic decided that a state tort injury actions for defective medical devices are barred when the FDA grants the device premarket approval through the federal Medical Devices Act.
With such a technical ruling, the national media has largely ignored the far-reaching significance of this ruling. However, MSNBC’s Keith Olberman recently took on the federal preemption issue in Riegel–and took the opportunity to bash Bush (shocker!)–in his usual one-sided presentation of facts.
Like Ronald Miller of the Maryland Injury Lawyer Blog, who drew our attention to the video, I’m not a big fan of Olberman. In fact, I’d probably agree to any derogatory term used to describe him and he hasn’t been funny or clever since his time on ESPN. But he deserves some credit for taking notice of this ruling.
Earlier today, the California Assembly rejected AB 1505 by failing to pass it out of the Assembly Judiciary Committee.
The bill received so little support that when Van Tran (R-Costa Mesa) moved the bill, it did not receive a second and therefore failed without a vote.
The Civil Justice Association of California (CJAC) continues to press the meat of AB 1505 through a costly initiative process.
Assemblymember Nicole Parra (D-Hanford) stated, in bringing the bill, that it would do nothing to prevent legitimate class actions from being brought. However, she hoped that it would prevent lawyers from gaining large verdicts and plaintiff class membes seeing little compensation as a result. She further stated that AB 1505 attempted to align state with federal law.
However, according to the Consumer Attorneys of California (CAOC), AB 1505 would undermine the civil justice system by preventing an ordinary citizens’ right to bring a class action lawsuit in California. Among the provisions of AB 1505 that CAOC objected to:
1. The bill would have required each individual class member to prove their individual claim and extent of damages. Most importantly, it would have required trial evidence on both the plaintiff and defense side to be “substantially the same”.
2. The bill would have given the defendant the right to bypass class counsel to communicate directly with class members to make a settlement offer directly to the defense. This would have bypassed and destroyed the attorney-client relationship. It would have also allowed the defendant to make low ball offers and use threats to force class members to disregard their counsel’s advice.
3. The bill would also have stayed discovery of the merits of the case until the class was certified. This provision ignores the fact that the discovery process allows plaintiffs the ability to prove the existence of a broader class by being able to identify potential class members.
Our office is pleased by the defeat of this bill. Tort Reform supporters fail to recognize the need for class action attorneys to represent the rights of numerous consumers who have been wronged by the illegal acts of large companies. The importance of class action attorneys has been heightened in recent decades due to the reluctance of the government to enforce its’ own laws, leaving it to class action attorneys as “private attorney generals.”
If there is an objection to class action attorneys being paid for their services, it should be that we–as taxpayers–have already paid the government to do the job through our taxes and they have failed to do so.