Legal observers decry proposal to overhaul federal preemption

Alejandro de los Rios Jun. 11, 2010, 12:10pm



Public policy attorneys Cary Silverman and Victor Schwartz of Shook, Hardy & Bacon in Washington, D.C. have co-authored an article in the Tulane Law Review examining recent developments in federal preemption law.

"Preemption of State Common Law by Federal Agency Action: Striking the Appropriate Balance that Protects Public Safety" examines public policy in regards to preemption of common law claims by federal agency regulations.

In a telephone interview, Silverman explained that, while preemption is not something that comes up regularly in civil litigation, the elimination of federal preemption may make cases tougher to be dismissed from court.

"It's more likely to proceed to a trial or increase the settlement value of that case," he said. "But at the end of the day, if that case goes before a jury, that jury can still consider a company's compliance following federal regulations and whether or not they should be held liable."

The issue of federal preemption has come up recently because of a case at the U.S. Supreme Court, in which Califorian Delbert Williamson is suing Mazda on wrongful death claims. (Williamson v. Mazda)

Williamson alleged that Mazda was negligent in the accident because the company chose to install lap belts instead of lap and shoulder belts in the second row center seat of the Mazda minivan his wife was riding in, according to an article published on by the firm Trolman, Glaser & Lichtman, P.C.

The federal preemption issue is also before the U.S. House of Representatives in a bill known as the Motor Vehicle Safety Act. According to, Rep. Henry Waxman has introduced an amendment to the bill that "would ban as well as retroactively vitiate federal preemption language in National Highway Traffic Safety Administration regulations."

Silverman said that preemption is important because it sets guidelines and a duty for manufacturers based on the industry standard of the time. He said that in Williamson v. Mazda, federal regulations did not require a lap and shoulder seat belt when that car was built in 1993.

"If a company did everything that it was supposed to do, punitive damages would be completely inappropriate," he said.

In a column published June 9 in the Washington Examiner, David Freddoso said eliminating preemption in the case of automobiles "won't make you any safer on the highway, but it will make a lot of lawyers very rich."

There have been 13 motor vehicle product liability suits and 1,824 car accident suits filed in Orleans Parish Civil District Court in the past calendar year.

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