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Supreme Court Argument Report: Justices Mull Pre-emption of Product Liability Claims
Court also hears 'Batson'-related case involving O.J. Simpson reference
Law.com
December 05, 2007
The Supreme Court justices on Tuesday heard a case involving whetherfederal law governing the Food and Drug Administration's pre-marketapproval of medical devices pre-empts state product liability claims. Asecond argument concerned peremptory challenges to African-Americanjurors in a death penalty case in which the prosecutor made referencesto the O.J. Simpson murder trial.
Riegel v. Medtronic asks whether state law product liabilityclaims involving medical devices that received pre-market approval bythe FDA are pre-empted by a provision of the Medical Device Amendmentsto the Food, Drug and Cosmetic Act.
Charles Riegel and his wife sued Medtronic, the manufacturer of aballoon catheter used in his angioplasty procedure that burst and causedinjury. The district court granted Medtronic's motion for summaryjudgment based on express pre-emption of the claims under the MDA, andthe 2nd U.S. Circuit Court of Appeals affirmed.
Several of the justices seemed reluctant to accept the idea that ajury's judgment about the safety and effectiveness of a medical deviceshould be allowed to second-guess the FDA's approval process.
Justice Anthony Kennedy noted that the FDA is "specifically charged withweighing the risks against the probable benefits," and in a stateproduct liability case, "the jury is doing the same thing that the FDAdid."
Justice Antonin Scalia expressed a similar concern. "What's going on issimply one jury has decided that in its judgment, there was a saferdevice that should have been used; and because of the judgment of thatone jury, the manufacturer is placed at risk in selling a device thatscientists at the FDA have said is OK. I find that extraordinary,"Scalia said.
Justice Stephen Breyer said he was worried about whether Congressintended to let state product liability cases challenge devices that theFDA has approved.
"So every time there is an accident or something bad happens, thelawyers assert a design claim and they gear up discovery," Breyer said,asking if Congress "intended that kind of thing when what they're tryingto do is have a group of experts really look into this and decidewhether [devices should be] marketed or not."
Allison M. Zieve, arguing for the petitioner, referenced cases such asthose involving the Dalkon Shield, in which severe injuries resulted inproducts being recalled because of a design defect.
"In those cases, could Congress have really intended to protect themanufacturer from liability?" she asked.
Former Solicitor General Theodore B. Olson, representing Medtronic,argued that if juries "require products to be changed, they will bydefinition be either less safe or less available than the FDA hasdetermined is in the best interests of the public."
Deputy Solicitor General Edwin S. Kneedler also argued for therespondent on behalf of the United States as amicus curiae.
JUSTICES HEAR 'BATSON'-RELATED CHALLENGE TO MURDER CONVICTION
In the second case argued Tuesday, Allen Snyder, an African-American, ischallenging his murder conviction and death penalty sentence by anall-white Louisiana jury. Snyder attacked his estranged wife and a malefriend with a knife, injuring his wife and killing her companion. Snyderargues that the Louisiana Supreme Court on appeal misapplied the U.S.Supreme Court's line of cases, starting with Batson v. Kentuckyin 1986, regarding unconstitutional discrimination in jury selection.
After four of the African-American prospective jurors in Snyder's casewere removed for cause, the prosecutor struck the remaining five throughperemptory challenges. The trial court denied a defense motion for a newtrial, finding no Batson violation because the prosecution'speremptory challenges were justified on race-neutral grounds. TheSupreme Court of Louisiana affirmed, and after the U.S. Supreme Courtremanded the case for consideration in light of the Court's 2006 rulingin Miller-El v. Dretke, the Louisiana high court affirmed again.
The prosecutor made public comments comparing Snyder's case to theSimpson murder trial. Then, during the sentencing phase, after promisingnot to reference the Simpson case, the prosecutor made further commentsto the jury without mentioning Simpson's name. Snyder was tried lessthan a year after Simpson's acquittal.
During the argument, the justices considered fairly detailed informationregarding individual prospective jurors in the case -- particularly somecomparisons between the questions the prosecutor asked prospectivejurors of different races during voir dire.
Justice Antonin Scalia questioned the accuracy of evaluating the voirdire process in retrospect. On the issue of whether a particular jurorwas slow in responding to a question about an issue such as the deathpenalty, Scalia said, "I can't tell that from a cold record. "The[trial] judge is in a much better position to decide those matters."
But Justice Ruth Bader Ginsburg noted that the judge was "quite passive"during voir dire.
Petitioner's counsel Stephen G. Bright agreed with Ginsburg and offeredan example.
"One of the more remarkable aspects of this jury selection is when hegrants a defense strike for cause, the prosecutor ... says -- 'are youcrazy?' And the judge says: 'No.' And they go right on to the nextfact," Bright said.
"It sounds like the right answer to me," Scalia quipped.
"It wasn't the right question," Bright said. "I've often wondered aboutthat, but I've never articulated it."
Justice David Souter questioned the judge's finding that theprosecutor's comment about the Simpson case during sentencing was not aracially significant remark because he did not mention Simpson's orSnyder's race.
"Now that is not a critical mind at work, is it?" Souter asked LouisianaAssistant Attorney General Terry M. Boudreaux, who argued for therespondent. Souter's observation prompted laughter from the spectators.
"I would suppose not, Your Honor," Boudreaux said, but he went on to saythat the Simpson reference was based on factual similarities withSnyder's case.
"Do you believe that, if there had been a white defendant here, the O.J.Simpson case would have been mentioned?" Souter asked.
When Bordeaux answered yes, Souter told him, "I will be candid [and] sayto you, under the -- under the circumstances of the record in front ofus, I find that highly unlikely."
The case is Snyder v. Louisiana.
Laurel Newby is a senior editor with Law.com.
