In case you haven’t noticed, we like preemption. We’ve even called ourselves “obsessed” with it. And with good reason. Preemption, where it’s available, is the most powerful defense around – capable of wiping out an entire MDL with a single motion to dismiss. Preemption is not dependent on the strength of a plaintiff’s underlying case. It doesn’t matter how solid medical causation might be, or how much the prescribing physician has (or has not) been suborned during ex parte chats with the other side. If preemption applies, than it’s bye-bye claim, and often bye-bye plaintiff. No discovery necessary.
Thus, it’s not surprising that plaintiffs’ lawyers fight preemption tooth and nail. That’s their job. They are just as ethically bound to represent their clients zealously within the boundaries of the law as we are. Thus they pick every preemption nit they can find.
That’s what we’re on about today. We’re discussing some recent decisions that address some lesser-known – but equally deadly − preemption arguments.