The extreme five on the nation’s highest court, who have typically acted – in nearly every case they have chosen to hear – to insulate corporations from liability whenever corporations conflict with actual human beings, have once again used tortured logic and employed selective misreading or selective misrepresentation of prior and current law to turn justice on its head. The decision of the five in Mutual Pharmaceutical Co., Inc. v. Bartlett leaves not only the horrifically injured Karen Bartlettwithout any viable means to receive compensation for her injuries, but also thousands of others injured by dubious drugs. Additionally, the 5-4 decision gives generic drug companies little to no incentive to monitor the safety of the drugs they make, drugs which most insurance companies essentially force their clients to buy, in most cases offering to pay only for the generic version of a given drug. Since 80 percent of drugs dispensed in the country are generics, and since at least half of the more than 300 million people in the country filled at least one prescription last year, this decision stands to affect millions of people.
Roberts Court Activist, Hypocritical
Writing for the minority in the standard 5-4 ideological split, Justice Sotomayor clearly sums up the majority’s nonsensical approach to arrive at its nonsensical conclusion. Sotomayor states her dissent respectfully, as she must, clearly hoping that somehow, someday, the Roberts court will not only become human, but also come to their senses and defer to states rights, as the presidents who appointed the extreme five essentially promised they would. It is a continuing mystery how justices from a side of the aisle always calling for smaller government and less interference by government, can continue to steadily rule in ways which put more and more power into the hands of a central government and take more and more power away from state courts and from people.
To arrive at their conclusion that it was impossible for Mutual to honor both state and federal law and that therefore Bartlett’s state tort suit was preempted by federal law, the five (1) misrepresented New Hampshire law and the context and facts of the New Hampshire case; (2) misstated the plaintiff’s argument; (3) mischaracterized the role of the FDA as it relates to state and federal tort law rulings; (4) ignored, misrepresented or misapplied their own precedents, and (5) ignored clear congressional intent and the high court’s own longstanding presumption against preemption, just as they had in the Mensing case. If that is not judicial activism, it is difficult to say what would be.
The Majority –
1.) Claimed that New Hampshire law required Mutual to alter sulindac’s label, a claim in total contradiction to New Hampshire law and to what the New Hampshire Circuit court ruled. As Sotomayor writes, “No matter how many times the majority insists otherwise, ibid., a manufacturer who sells a drug whose design is found unreasonably dangerous based on a balance of factors has not violated a state law requiring it to change its label.” This is the crux of the whole matter: the five ruled it was impossible for Mutual to comply with something that neither New Hampshire law nor its judiciary in this case had ever argued was possible in the first place.
2.) Claimed that Bartlett’s design-defect claim was in fact a disguised failure-to-warn claim (which was preempted by summary judgement in the New Hampshire District Court.) The majority provides no evidence to back that claim, except to misrepresent the letter and intent of New Hampshire law regarding an “unreasonably dangerous” drug. (One wonders while reading the majority decision whether any of the five even bothered to read New Hampshire law.) The New Hampshire court, as Sotomayor wrote, “repeatedly explained that an alleged failure to warn by Mutual could not and did not provide the basis for Bartlett’s recovery.”
3.) Made what Sotomayor termed “a highly contested policy judgement about the relationship between FDA review and state tort law – treating the FDA as the sole guardian of drug safety – without defending its judgement and without considering whether that is the policy judgement that Congress made.” Sotomayor also points out, “[T]he majority’s overbroad impossibility framework [that it was impossible for Mutual to comply with both state and federal law] takes no account of how federal drug safety review actually works.” Well, when you rigidly cleave to an ideology that virtually always finds corporations faultless, there’s apparently no need to look at how anything works in the real world – the one that people work and bleed and suffer and die in.
4.) Failed to apply their own previous decision in Dow Agrosciences LLC v. Bates, 332 F. 3d 323, 332-333 (CA5 2003). Sotomayor reminded the five, “This Court explicitly rejected the notion that because design-defect liability might lead a manufacturer to make a label change, it meant that the State’s design-defect claim imposed a requirement for labeling on packaging. The majority contends that this case is different because the duty to redesign sulindac’s label was an element of New Hampshire’s design-defect law. Ante, at 19. But it is not.” It’s hard to write historical facts, and point out inexplicable contradiction, in language any plainer than that.
5. Failed to defer to the intent of Congress, which is the first consideration in any preemption argument, just as they failed to defer to congress in Mensing. Like PLIVA before it, Mutual argued that the Hatch-Waxman Amendments of 1984 left them free of liability for any of their products. Henry Waxman himself wrote an amicus brief in Mensing and another one in Bartlett, explaining to the high court how congress has always known how to preempt state tort suits when it deems that step necessary. Waxman weighed in both times heavily on the side of people hurt by dangerous drugs. Short of another amendment, and everyone knows just how difficult it can be to pass a new amendment for any reason in Washington D.C., it is difficult to imagine more explicit evidence to show congressional intent.
As we wrote in this blog in Dec. 2012, the Roberts court has again and again supported corporations in battles against citizens.
Supreme Court for the 1% (from Dec. 2012)
Among its accomplishments in steering America toward total corporate domination, the Roberts court has voted 5-4 (the same five appointees every time: Roberts, Scalia, Alito, Thomas, Kennedy) to shield generic drug makers from liability (PLIVA v. Mensing, 2011); voted to shield medical device makers from liability (Riegel v. Medtronic, 2008); voted to give Exxon an essentially free pass for destroying the lives, livelihoods and environments of 30,000 people along with countless animals and marine life (Exxon Shipping v. Baker, 2008); voted to allow corporations to pollute the water of at least 117 million americans with impunity and to escape EPA investigations (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001; and Rapanos v. United States, 2006); voted to overturn a century of antitrust law prohibiting price fixing by retailers (Leegin Creative Leather Products, Inc. v. PSKS, Inc., 2007); voted to put U.S. state, local and national elections up for sale to the highest bidders, be they corporations foreign or domestic (Citizens United v. FEC , 2010); voted to make it easier for corporations to discriminate against women and the elderly (Ledbetter v. Goodyear, 2007); and the dreary list goes on.
