The Third Circuit issued a whopper of a preemption opinion on Friday in Farina v. Nokia, Inc., ___ F.3d ___, 2010 WL 4138502 (3d Cir. Oct. 22, 2010), unanimously holding that state-law claims that cellphones emitted harmful radiation were preempted.  We’re not going to delve into Farina very much because:  (1) cell phones are not medical devices or drugs (though they can be addicting); and (2) Dechert is involved in that litigation, so we have to keep our mouths, if not shut then carefully regulated.

However, one interesting legal point in Farina deserves attention – its discussion of one of the (numerous) problems with the Supreme Court’s reasoning in Wyeth v. Levine, 129 S. Ct. 1187 (2009).  That discussion occurs on pages *22-24 of the Farina opinion (Westlaw version).  One of Levine’s grounds for not finding any implied preemption was the absence of any express preemption clause in the FDCA.  Specifically, the Court stated:

If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA’s 70-year history. But despite its 1976 enactment of an express pre-emption provision for medical devices, Congress has not enacted such a provision for prescription drugs. Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.

129 S. Ct. at 1200 (citations removed). We commented at the time – literally the same afternoon that Levine came down – that this analysis was problematic:

[T]he majority allows implied preemption to be driven by express preemption (or, more properly, the lack of it) more than it has in previous cases.

We were being kind.  Before Levine, quite a few cases – we can think of Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001), Geier v. American Honda Motor Co., 529 U.S. 861 (2000), and Freightliner Corp. v. Myrick, 514 U.S. 280 (1995), off the top of our heads – had held that express and implied preemption operated independently.  That is, these decisions had held that the presence or absence of an express preemption clause didn’t affect, one way or the other, whether a particular claim was impliedly preempted due to conflict with federal law.

Levine not only didn’t overrule these prior decisions – it didn’t even mention them (not for this proposition, anyway).

Well, the plaintiffs threw this aspect of Levine into the hopper in opposing preemption in Farina. The Third Circuit wasn’t buying.

[T]he lack of an express preemption provision covering claims like [plaintiff’s] does not necessarily mean Congress intended to preserve conflicting state law.  We do not read [Levine’s] reference to Congress’s decision not to enact an express preemption provision, as standing for the proposition that conflict preemption should not be found absent an express preemption provision.  Such a reading would come too close to subsuming conflict preemption into express preemption analysis, and is inconsistent with the axiom that an express preemption provision does not “bar the ordinary working of conflict pre-emption principles,” Geier, 529 U.S. at 869.

Farina, 2010 WL 4138502, at *22 (various other citations omitted) (emphasis added).

Farina is one of the first decisions we’ve seen that has addressed directly Levine’s unspoken divergence from prior law on whether express preemption (or the lack of same) can have negative implications for implied preemption.  We doubt it will be the last.