Rules Would Limit Lawsuits

By Caroline E. Mayer
Washington Post Staff Writer
Thursday, February 16, 2006

The Bush administration is using federal rulemaking to limit consumer rights to seek damages under state laws governing faulty products.

The Consumer Product Safety Commission will vote today on a rule that would restrict such suits in the case of mattresses that catch fire, the most recent rule changes undertaken by several agencies. Last month, the Food and Drug Administration limited consumers' ability to recover damages for injuries from agency-approved drugs.

Meanwhile, the National Highway Traffic and Safety Administration is seeking to give automakers similar legal immunity from lawsuits over defective roofs if their vehicles meet new roof-crush standards. It is also proposing to limit consumer lawsuits in a rule that would address seat-belt requirements.

Administration officials say they are simply writing into rules a long-standing policy previously voiced in many friend-of-the-court briefs filed in lawsuits. The FDA, for example, has intervened in a number of consumer cases filed under state laws against makers of drugs and medical devices, saying the companies should be protected from state laws because they followed federal rules. NHTSA has argued in several cases against carmakers that its safety rules preempt state rules and tort claims.

"Having a single federal standard is the best way to guarantee safety," said Brian Turmail, spokesman for the Transportation Department.

White House officials said preemption provisions proposed by different federal agencies do not reflect a concerted administrative policy. Decisions about federal preemption "are made agency-by-agency and rule-by-rule," said Alex Conant, spokesman for the Office of Management and Budget. "Under the Constitution, federal laws take priority over inconsistent state laws."

Consumer advocates and trial lawyers say the threat of consumer lawsuits has prompted manufacturers to continually develop safer products that far exceed federal standards.

"Removing a significant incentive for industries to improve outside of meeting the federal standard may have a chilling effect on industries integrating new safety technology into their products," Sen. Daniel K. Inouye (D-Hawaii), co-chairman of the Senate Commerce, Science and Transportation Committee, wrote in a letter to the CPSC this week. Inouye asked the agency to approve new mattress-flammability standards but set aside the provision limiting consumer lawsuits.

"Safety standards are baseline starting points. They should not be ceilings," Inouye said.

CPSC officials declined to discuss the preemption provision before the vote. Julie M. Vallese, the agency's spokeswoman, said "the concerns of the senator are being addressed." Consumer advocates, trial lawyers and state officials say the recent moves to preempt state laws through federal regulation are a backdoor effort by the Bush administration to change tort law and protect manufacturers. Ever since his 2000 campaign, President Bush has persistently attacked trial lawyers, saying they file frivolous lawsuits and win inflated jury awards that increase the cost of doing business, stifle innovation and raise consumer prices.

The policy is ironically coming from a "Republican administration believing in states rights," said Glenn Lammi, chief counsel of Washington Legal Foundation, a pro-business public interest group. "It reflects the philosophy of wanting to have uniformity in its regulations."

The CPSC's provision is part of an six-year-old effort to update a 30-year-old standard and reduce injuries and deaths caused by mattress fires. Currently, mattresses must resist ignition by smoldering cigarettes. The new standard would address fires caused by open flames, such as from candles or lighters. Such fires are considered far more dangerous than smoldering fires because the heat can build up quickly, resulting in "flashovers." In those fires, the entire contents of a room ignite, making it difficult to flee and dangerous for firefighters. The proposed rule would require mattresses to be designed so that the growth of a fire would be limited within the first 30 minutes to no more than 200 kilowatts of heat, the equivalent of a computer-monitor fire.

The agency found that mattresses and bedding were the first to ignite in an average of 15,300 house fires a year from 1999 to 2002. It estimated that the proposed standards would eliminate about 75 percent of the 330 deaths and 1,680 injuries a year from mattress fires.

The CPSC's proposed standard is similar to a California mattress-flammability standard that went into effect last year. As other states considered similar safety rules, the mattress industry pressed the federal agency to adopt a single national regulation. The industry, represented by the International Sleep Products Association, also asked the agency for preemption of state laws. "We want a national standard that is followed coast to coast," said Ryan Trainer, the association's general counsel.

That proposed preemption "is unprecedented in my experience," Whitney A. Davis, director of the Children's Coalition for Fire-Safe Mattresses, said yesterday.

Had the preemption been in effect in the late 1990s, Davis said, there might not have been a lawsuit brought on behalf of 7-year-old Mitchell Ritchie of California, who received burns over 85 percent of his body after a humidifier near his bed malfunctioned. "The estimate was that in two minutes the mattress was fully involved," Davis said. The mattress met federal safety standards. His lawsuit was settled in a confidential agreement.

"Federal standards don't make something not defective," Davis said.

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