AAJ Sends Obama Team Strategies to Reverse Bush "Complete Immunity" Regulations

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AAJ Sends Obama Team Strategies to Reverse Bush "Complete Immunity" Regulations 

For Immediate Release: January 12, 2009

Contact: Cecelia Prewett, Jennifer Fuson
202.965.3500, ext. 8369

AAJ Sends Obama Team Strategies to Reverse Bush “Complete Immunity” Regulations

Asks New Administration for Swift Action to Protect Americans’ Right to Civil Justice and Hold Wrongdoers Accountable

Washington, DC—Today the American Association for Justice (AAJ) is asking the Obama administration to reverse Bush-era regulations that have given complete immunity to negligent corporations and “preempted” the right of Americans to hold wrongdoers accountable through the civil justice system. 

AAJ has outlined five key steps that will restore the traditional balance between federal regulation and state-based consumer protections and ensure injured Americans have access to the courts when injured by negligence or misconduct.

“We look forward to the Obama administration reaffirming the importance of a civil justice system that complements strong regulations,” said AAJ Senior Vice President for Public Affairs Linda Lipsen.  “The efforts to give negligent corporations complete immunity, escape accountability, and leave Americans without any recourse has gone too far and must be reversed.”

To date, seven agencies have issued over 54 regulations with language in the preamble to preempt state tort claims, many times without adhering to notice and comment procedures and directly contrary to Congressional intent.  In addition, the Bush administration pushed forward rules in the critical areas of drug and transportation safety that included sweeping preemption language in the text of the rules.

In order to protect consumers’ right to take on the most powerful interests in the civil justice system, the strategic steps include: issuing a stay of 23 non-final or recently completed rules from five different agencies, revising an executive order on federalism, and opening rulemaking proceedings to reverse final rules issued as part of the coordinated Bush administration campaign.  (For a list of all regulations containing preemption language, contact AAJ.)

AAJ outlined the following steps that could be taken:

(1) Issue a January 20, 2009, immediate stay memorandum to federal agencies – The January 20, 2009, stay would require that any non-final or recently completed rules be stayed and have no effect on state tort law.  If the agency decides to issue a new final rule, the rule should deny any attempt to preempt state tort law.  This step would address 23 regulations, including several dealing with auto safety and products requiring FDA approval.

(2) Issue revised Executive Order 13132 on Federalism – First, this revised order will instruct agencies and the courts regarding the Obama administration’s preemption policies.  Second, it will clarify policy on final rules that include preemption language in the preamble, and it will give the agencies the opportunity to issue a new interpretation regarding the preemptive effect of the rule. 

(3)  Establish White House office to coordinate federalism issues – To coordinate the implementation of the administration’s preemption policy and to oversee the preemption language included in all federal rules, an office within the White House could be established.

(4)  Utilize rulemaking process to reinstate Congressional intent – The Food and Drug Administration (FDA) could open a rulemaking proceeding to reinstate Congressional intent regarding the ability of injured consumers to hold medical device manufacturers accountable for their injuries. The Supreme Court’s 2008 decision in Riegel v. Medtronic, which misconstrued the Medical Device Amendments of 1976, attempts to afford complete immunity to medical device manufacturers from claims regarding their Class III pre-market approved devices. 

The FDA also should withdraw its August 2008 final rule regarding labeling, which discourages medical device and prescription drug manufacturers from updating warning labels with hazard information without prior FDA approval.  This rule was likely issued as a component to the Bush administration’s preemption agenda and to influence the Supreme Court’s decision in Wyeth v. Levine (argued November 3, 2008). 

(5) Issue new rulemaking for rules containing preemption language in the preamble and text – In addition to the FDA supplemental labeling rule, two other agencies have issued rules containing preemption language in both the preamble and rule text.  The result is that the agencies have implemented their policies and codified them into law (rather than simply enforcing the law), contrary to the Constitution’s separation of powers and explicit Congressional intent.  AAJ suggests that the Obama administration re-open the rulemakings for these issues to ensure that there is no preemption of state tort law:

National Highway Traffic Safety Administration - Designated seating positions, 70 Fed. Reg. 36094 (2005); 73 Fed. Reg. 58887 (2008) (currently subject to pending Petitions for Reconsideration).This rule could grant vehicle manufacturers blanket immunity from lawsuits related to insufficient number of seatbelts included in a vehicle.

Transportation Security Agency – Rail transportation security, 71 Fed. Reg. 76852 (2006); 73 Fed. Reg. 72130 (2008).  This rule establishes minimum security requirements for railroads to transport hazardous materials and gives them complete immunity if they injure local residents in direct contradiction to recent legislation.  

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As the world's largest trial bar, the American Association for Justice (formerly known as the Association of Trial Lawyers of America) works to make sure people have a fair chance to receive justice through the legal system when they are injured by the negligence or misconduct of others—even when it means taking on the most powerful corporations. Visit http://www.justice.org/newsroom.

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