Tort Reform Through the Back Door

When we think of “tort reform” we usually think of insurance and corporate lobbyists trying to convince legislators to limit the ability of people to sue wrongdoers for personal injuries or wrongful death.

But the fight is much broader than that, as evidenced by this press release from the National Conference of State Legislators. Now, the FDA is considering a rule that would limit the liability of drug manufacturers from failure-to-warn suits if the drug’s label was approved by the FDA. The rule would pre-empt state law, including state common law.

The FDA has argued before that its approval of medical devices pre-empted state law claims. The claim has been rejected in drug cases in the past.