Fighting for Access to Justice, Part 2

Fighting for Access to Justice, Part 2

Michelle Nemphos wanted to protect her child. What she found herself in was a little-understood legal fight for her right to a day in court. The Nemphos case highlights why Public Justice takes on cases to fight for the people we represent, protect and advance the rights of millions, and preserve access to justice for all. 

Nemphos is yet another case originally thrown out because of federal preemption. “Federal preemption” is not a catchy, emotionally-gripping term, but it holds the key to whether corporations can be held accountable for marketing products that kill and injure people. That’s why we’re battling it – and why our new food safety case, Nemphos v. Nestle Waters North America, Inc., is so important. 

Federal preemption is what happens when a law adopted by the U.S. government and a law adopted by a state government conflict: the federal law “preempts” – or wipes out – the state law. It stems from the Supremacy Clause of the U.S Constitution, which says that “the Laws of the United States …shall be the supreme law of the land …anything in the … laws of any state to the contrary notwithstanding.” It means, for example, that, if federal law requires you to do something (pay taxes, have a Social Security card, etc.) and state law prohibits you from doing it, you have to do it. The state law has no effect.  

When the laws really conflict, that makes sense. But corporations selling products that harm people are increasingly arguing they can’t be sued because federal law allowed them to sell the product and that preempts – and immunizes them from – the state laws that would hold them accountable. 

These companies ought to act responsibly: compensate the people they injured, make the product safer or, if that is not possible and the damages the product is causing are not worth its benefits, stop selling and recall the product. But they don’t want to. It’s not about morals. (Corporations don’t have morals; they’re not people.) It’s about profits. Compensating people, making products safer and taking products off of the market costs money – and decreases profits. So they are arguing that federal law preempts the state laws that would make them do those things and gives them total immunity.

The key problem with this argument is that none of the federal laws the companies are pointing to allow them (much less require them) to sell any product without compensating the people the product injures. Federal law sets the minimum for what companies must do in order to sell the product.  It does not say they can injure consumers with impunity. Moreover, and perhaps most outrageously, the federal laws the companies are relying on are the statutes Congress passed and the regulations federal agencies adopted to protect consumers from unsafe products.

Nemphos is a perfect example. In that case, Nestle and Dannon manufactured and marketed fluoridated bottled water as especially good for children – they called it “the one designed with kids in mind” – when they knew it was especially bad for children. Drinking large amounts of fluoridated water permanently damages kids’ teeth. It causes fluorosis, which interferes with the development of enamel, discolors, and disfigures teeth. But Michelle Nemphos believed Nestle and Dannon. So she regularly bought their water for her daughter, whose teeth will never be the same. She will need expensive dental treatment for life.

Nemphos sued Nestle and Dannon under Maryland state law, which requires companies to compensate people they injure by failing to warn of (or intentionally misleading consumers about) their products’ dangers. The companies argued, however, that they could not be sued because Maryland law was preempted by the Nutrition Labeling and Education Act of 1990, which Congress passed to protect consumers by requiring uniform nutritional labeling of food and regulating the health claims that food manufacturers make. And the district court agreed, even though nothing in that statute or its implementing regulations says food manufacturers don’t have to compensate the people they injure, authorizes corporations to lie to consumers, or allows companies to market products as good for children (or any people) when they know it’s bad for children (or anyone). Public Justice is challenging the decision.  

The Nemphos ruling is particularly misguided, but, unfortunately, it is just the latest attempt by corporations to build on recent U.S. Supreme Court decisions expanding federal preemption and granting product manufacturers immunity from state laws requiring them to compensate people they harm. In 2008, the Court held in Riegel v. Medtronic, Inc., that, because of federal preemption, millions injured by defectively designed medical devices could not sue the manufacturers at all.  In 2009, in Wyeth v. Levine, the Court held that federal law does not preempt lawsuits against prescription drug manufacturers for failing to warn of their products’ dangers. But, in 2011, the Court ruled in Pliva v. Mensing that federal law does preempt lawsuits against generic drug manufacturers for failing to warn of their drugs’ dangers. In other words, the Court held that people who use generic drugs instead of name-brand drugs lose their rights when they do so.  

No matter how badly injured they are and no matter what the drug’s manufacturer knew or when it knew it, they cannot get justice. Through federal preemption, access to justice is denied.

This is not how our country or legal system is supposed to work. It increases the likelihood that corporations will sell products that injure and kill people – and fail to act responsibly if they do. It means more people will be hurt and killed – and won’t be able to hold the corporations accountable. It encourages companies to do and spend less to make products safer. It puts companies that do and spend more at a competitive disadvantage. It makes consumers bear the costs of buying unsafe products while corporations reap the profits of selling them. 

And it’s why we should all care about – and fight – federal preemption of injury victims’ claims.

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