Trial Lawyers on the Offensive in Fight Against Preemptive Rules

Official Washington loves the word "stealth." It connotes intrigue and secrecy, making the term well understood in a capital where spies and invisible fighter jets aren't the only ones sneaking around.

At least that's how the nation's trial lawyers view the Bush administration's increasing use of federal health and safety regulations in defense of manufacturers trying to fend off multimillion-dollar liability claims from consumers in state courts.

The fine print of a 2006 Food and Drug Administration rule on prescription labeling that preempts, or overrides, state laws is proving to be a powerful weapon in the courtroom at a time when Merck is fighting thousands of lawsuits from consumers claiming they were harmed by its painkiller Vioxx.

"We are generally heartened by such rules," said Darren McKinney, a spokesman for the American Tort Reform Association, which has about 300 businesses and trade associations as members. "Regulatory experts are better arbiters of what is a potential threat to a consumer than a judge or jury in Michigan."

Since 2005, federal agencies, including the Consumer Product Safety Commission, the National Highway Traffic Safety Administration and the Department of Homeland Security, have issued more than a dozen rules that stress the primacy of federal law.

Plaintiffs attorneys, who have been watching the trend with alarm, say eliminating the option of suing a company at the state level will result in weaker federal regulations, more cost to the government for consumers' medical bills and a usurping of congressional authority.

Trial lawyers, who are among the biggest donors to Democratic candidates for Congress, are pushing for legislation that would prohibit agencies from overriding state or local law unless Congress directs it or the laws conflict.

The Senate Judiciary Committee has scheduled a hearing for tomorrow: "Regulatory Preemption: Are Federal Agencies Usurping Congressional and State Authority?"

"If Congress does not act, the Bush administration's escalating use of stealth preemption will deprive consumers of their right to hold negligent corporations accountable for injuries caused by defective products while these same corporations continue to increase their bottom line," said Gerie Voss, regulatory counsel for the American Association for Justice, a trade group in Washington that represents 52,000 trial lawyers.

"The states need to be able to offer citizens the ability to have recourse against wrongdoers, which is the ability to bring suit in state court," Voss said.

Business groups say there is no orchestrated effort to salt regulations with provisions that protect companies from lawsuits.

"I am not aware of any conspiracy to get the agencies to do it, but obviously the business community is not going to object," said Lawrence Fineran, until recently a vice president at the National Association of Manufacturers.