Saturday, February 21, 2009
The battle over preemption continues
The battle over preemption continues. Yesterday The New York Times published an article (available here) with an overview of the expected fight in Congress to restore people's legal rights against medical device manufactures, which the Supreme Court ruled were preempted by federal law last year. (An earlier article about that case is available here). The Pop Tort blog has a comment on this here, in which they cite a separate opinion by Wisconsin Supreme Court Justice Ann Walsh Bradley in which she states: “I write separately in order to express my concern that the United States Supreme Court's interpretation of the 1976 Medical Device Amendments does not adequately protect the safety of the citizens of Wisconsin. With one stroke of a pen, it has diminished the states' traditional authority over the development of the common law and substituted instead mandatory adherence to a regulatory standard that may be substandard. I do not believe that such adherence was mandated by the express language of the amendments, although I acknowledge that I am bound by the Supreme Court's interpretation.” This opinion was part of the Court's decision in a case in which it ruled against a man who had a faulty defibrillator.