Mullin' Over Preemption: Lohr, FDA Regulations, and Mullins

Federal preemption of state law is one of the most significant defenses employed by drug and medical device manufacturers defending product liability lawsuits. The defense has risen in significance over the past decade on the heels of several Supreme Court decisions expanding the reach of the preemption doctrine. Today, a dispositive motion predicated on preemption is likely to be the first made, or faced, by a mass tort attorney in any nascent drug or medical device case. Therefore, it is important for attorneys, especially young attorneys, to understand the preemption doctrine, the federal drug and device regulatory regimes, and the relevant Supreme Court cases. Further, attorneys must stay abreast of additional developments in preemption law, whether precedent-setting appellate and Supreme Court decisions or trial court opinions construing the precedent.