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Article
The Preemption Pentad: Federal Preemption of Products Liability Claims after Medtronic [v. Lohr]
Tennessee Law Review (1997)
  • Robert B Leflar
  • Robert S. Adler
Abstract
Taking the language of the federal consumer protection statutes out of historical context and inattentive to those laws' original purposes, judges dissatisfied with the expansion of state products liability law have in recent years read preemption provisions of these federal statutes to bar a wide range of claims that would otherwise be viable under state law. In Medtronic v. Lohr, the Supreme Court (per Justice Stevens) severely constrained the scope of the federal preemption defense in the context of the federal medical device law. But the implications of the Medtronic decision for cases involving products in other regulatory categories remain uncertain. In this article, we offer a five-step "preemption pentad" for analyzing federal preemption defenses in products liability cases. Our approach, which takes a restrained view of preemption doctrine's encroachment on state tort law, is premised on Justice Stevens's method of statutory construction. We illustrate the pentad by suggesting how it would apply to products regulated under the federal drug and medical device laws, the motor vehicle safety law, and two consumer product safety laws.
Keywords
  • products liability,
  • federal preemption,
  • medical device regulation,
  • drug regulation,
  • FDA
Publication Date
1997
Citation Information
Robert B Leflar and Robert S. Adler. "The Preemption Pentad: Federal Preemption of Products Liability Claims after Medtronic [v. Lohr]" Tennessee Law Review Vol. 64 (1997)
Available at: http://works.bepress.com/rbleflar/9/