Since the U.S. Supreme Court handed down Wyeth v. Levine and Pliva v. Mensing, two important pre-emption decisions in the mass tort realm, there has been increased interest in pre-emption of state law claims. Pre-emption arguments, however, are not limited to mass tort pharmaceutical litigation.
Products liability law in the United States is largely based upon state regulations and common law, which dictate how manufacturers, distributors, suppliers and retailers are to produce, package, distribute and sell merchandise to consumers through the stream of commerce. Traditionally, defenses to strict products liability claims under state law have been limited. While the new standards established by the Pennsylvania Supreme Court in Tincher v. Omega Flex, 104 A.3d 328 (2014), seem to provide both Pennsylvania consumers and manufacturers with an advantage (depending upon which side is making the argument), counsel for both sides should always consider how the affirmative defense of pre-emption can severely limit, if not totally negate state law claims.
The Pre-emption Doctrine
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