Federal Preemption Lawyer | Houston Defective Drug Attorney & Defective Product Attorneys

Over the past decade, there has been a rise in all areas of product liability litigation.  This increase spans from Drug and Pharmaceutical manufacturing to tire recalls and even to children's toys product liability.  With that said, it is not surprising that large corporations have looked to all defenses to alleviate some of their liability.  One of the most successful defenses they have used is what is known as Federal Preemption.

What is Federal Preemption?

In short, federal preemption is the application of the Supremacy Clause of Article VI of the United States Constitution.  This Article provides that:

If you are injured by a defective product, the US Constitution gives you the right to file suit."This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the Contrary notwithstanding."

What this means is that when Congress has enacted a law, the States cannot then go and enact a contrary law.  If they do, then the state's law is deemed preempted and unconstitutional.

What are the two types of preemption that a Houston Product Liability lawyer can help with?

There are two types of preemption:

(1) Express Preemption:

Express preemption, in a nutshell, exists if a federal statute explicitly states that it preempts state law.  If Congress, in passing the statute, was exercising authority granted to it under the U.S. Constitution, and expresses its interest in regulating, then the statute is preempted.

(2) Implied Preemption:

Implied preemption occurs when there is a federal statutory law or scheme that is so prevalent that there is no room for state laws.  This usually occurs when the federal government has a strong interest in regulating the subject matter, and, as such, state laws cannot prevail.  In the past, this preemption has occurred with areas of the law such as the National Labor Relations Act where the federal government prefers to regulate the entire field of strikes.

Interestingly enough, while most times express preemption is unambiguous, often federal statutes expressing an intent to preempt are quite complicated and difficult to apply.  It is in times like these where Houston Product Liability lawyers can help.  Many Houston product liability lawyers are experienced and well versed in all areas of product liability law and know how to defend your claim against a preemption defense.  With the right counseling, your claim can be effective and indeed profitable, so please contact a Houston lawyer listed on this page.

Here is an example of how federal preemption works in terms of products liability law.  A driver of an automobile got into an accident.  Her vehicle was only equipped with a "waist seat belt" as opposed to the "waist and chest" safety belt which is universally accepted throughout the county as being safer.  The driver was horribly injured as a result of the accident and seat belt.  In the state where the accident occurred, car manufacturers were required to have built their cars with the "waist and chest" safety belt.  However, federal law provides that either safety belt would suffice.  Who wins?  This depends on many different factors which often times require a Houston Product Liability or Houston Product recall lawyer to help explain.  Without the right counseling, your claim could be pushed to federal court where it might be easier to lose your lawsuit!

Is Product Liability Law governed by Texas Law or Federal Law?

As stated throughout this website, most product liability law is governed by the laws of Texas.  Including Chapter 82 for products liability in the Texas Civil Practice & Remedies Code. This does not mean that, on occasion, the federal government will move to preempt an entire area of product liability law from state control in order to protect a certain group of manufacturers.  This occurred in 1998 when congress enacted the Federal Biomaterials Access Assurance Act 21 U.S.C.A. §§ 1601-1606.  The Federal Biomaterials Access Assurance Act was designed to protect the suppliers of materials for implantable medical devices from frivolous or unwarranted lawsuits.  Under the Federal Biomaterials Access Assurance Act a biomaterials supplier may only be held liable in three situations: (1) when the supplier is a manufacturer of medical implants under the act; (2) when the supplier is a seller of medical implants; or (3) when the supplier sold materials that did not meet contractual specifications of the manufacturer.

In March of 2009, The Supreme Court of the United States solidified its stance regarding federal preemption in Product Liability law when it announced its decision in Wyeth v. Levine, 129 S. Ct. 1187, (2009). In this case, the Supreme Court held that product liability claims made under state law were NOT preempted by federal law.  In a 6-3 decision, the court rejected a pharmaceutical company's argument that state law claims were preempted by federal law because it was impossible for Wyeth Pharmaceutical Inc. to comply with both sets of laws.  In particular, the Court made a point of noting that the there was no evidence that the particular risks at issue with this product had actually been considered by the FDA and that the defendant had thus failed to show that there was an actual conflict between FDA regulation and the state law tort suit.

In Wyeth, the pharmaceutical company labeled its product Phenergan, complete with warnings and instructions about use, in compliance with federal standards.  However, this was not the same standard that was required under Vermont's state regulations.  As a result of using the product, professional musician Diana Levine developed gangrene because of the product's injection and had to have part of her right arm amputated. Levine's suit said the drug's labeling should have forbidden the quicker acting IV injections of Phenergan because of the risk of injury.  Had the FDA considered the risks associated with this type of product and injury, the Court may have ruled differently.

The Supreme Court made certain lawsuits much more difficult in 2011 with its ruling in Pliva, Inc., et al. v. Mensing. In this case, the Supreme Court recognized that makers of generic drugs are required by federal law to copy the warnings on the brand-name version of the drugs. The court found that generic drug manufacturers cannot warn against additional dangers without violating federal laws. This new ruling gives generic drug manufacturers no incentive to test or warn of additional side effects. While they are free to ask the FDA to change the label on both the original and generic versions of the drug, generic drug manufacturers now face no consequences for ignoring newly discovered harms related to their products. For a victim of a defective or dangerous drug, this means that you may only sue for failure to warn of a side effect if the drug you took was a name brand drug rather than a generic one. This may seem particularly unjust, because it is often a pharmacist, rather than a doctor, who chooses whether to give you a generic version of a drug! Contact a Defective Drug Attorney today to learn more about how this ruling can affect your chances of recovery.

Why the Increase in Preemption Arguments?

When you are injured by a defective or unsafe product, a Houston product liability lawyer can tell you whether you should sue or not.Simply put, states try to make laws that protect their own citizens. The federal government's standards can often times be less stringent, and if the case went before federal court, chances are the consumer would lose. As one law professor has put it, "The increase in preemption arguments since the early 1990s surely resulted in part from product manufacturers and other litigation targets trying to get out from under the “weight,” perceived or real, of large-scale tort litigation. The occasional tort claim in the face of federal  regulation never seemed to generate much preemption interest until truly large-scale tort litigation became the norm after the explosion in asbestos cases in the 1980s and 1990s. Traditional analysis of the preemptive scope of most federal regulation had not resulted in findings of preemption until then; indeed very few such arguments had been made."

A Houston Texas product liability lawyer can help with even the most complicated claims and make sure that a preemption argument doesn't go unchallenged.

When President Obama took office, one of the most important actions that he performed was to reverse eight (8) years of the Bush Administration's assault on the rights of individuals to seek justice from corporations that had placed profits in front of corporate responsibility in decision making. He entered a Presidential Order reversing governmental preemption by almost every department of the federal government.

If a trial is to be held in state court, a Houston Product Liability Lawyer can represent you here.

Harris County District Courts
133rd Civil District Court
201 Caroline Street
11th Floor
Houston, TX 77002
(713) 368-620
151st Civil District Court
201 Caroline Street
11th Floor
Houston, TX 77002
(713) 368-6222
129th Civil District Court
201 Caroline Street
10th Floor
Houston, TX 77002
(713) 368-6180
152nd Civil District Court
201 Caroline Street
11th Floor
Houston, TX 77002
(713) 368-6040
127th Civil District Court
201 Caroline Street
10th Floor
Houston, TX 77002
(713) 368-6161
157th Civil District Court
201 Caroline Street
11th Floor
Houston, TX 77002
(713) 368-6230


If your Harris County product liability case is filed in federal court or removed to federal court, your Houston product liability lawyer can represent you in federal court. The federal courts in Houston are located in the:

   USDC - Southern District of Texas - Houston Division   

The United States Courthouse
515 Rusk Avenue
Houston, Texas 77002
Mailing Address:
David J. Bradley, Clerk of Court
PO Box 61010
Houston, Texas 77208
After hours emergency number (832) 215-8626
                                               General Information Number (713) 250-5500                                             

USDC Southern District Judges
Chief Judge Ricardo H. Hinojosa
(956) 618-8065
Judge Randy Crane
(956) 618-8083
Judge Andrew S. Hanen
(956) 548-2591
Judge David Hittner
(713) 250-5511
Judge Janis
(361) 888-3525
(713) 250-5377
Judge Diana Saldaña
(956) 790-1381
Judge Micaela Alvarez
(956) 726-2242
Judge Keith Ellison
(713) 250-5806
Judge Melinda Harmon
(713) 250-5518
Judge Ewing Werlein, Jr.
(713) 250-5533
Judge George P. Kazen
(956) 726-2237
Judge John D. Rainey
(361) 788-5030
Judge Hilda G. Tagle
(956) 548-2510
Nancy S. Atlas
(713) 250-5990
Judge Vanessa Gilmore
(713) 250-5512
Judge Hayden Head
(361) 888-3142
Judge Kenneth M. Hoyt
(713) 250-5515
(713) 250-5177
Judge Lee H. Rosenthal
(713) 250-5517
Lynn N. Hughes
(713) 250-5516

The Houston Division covers the following Texas Counties:Austin, Brazos, Colorado, Fayette, Ft. Bend, Grimes, Harris, Madison, Montgomery, San Jacinto, Walker, Waller, Wharton

Serving clients throughout southeast Texas, including Aldine, Baytown, Bellaire, Beaumont, Channelview, Cloverleaf, Conroe, Deer Park, Friendswood, Galena Park, Galveston, Hedwig Village, Highlands, Hilshire Village, Humble, Jacinto City, Katy, League City, Magnolia, Mission Bend, Missouri City, Pasadena, Pearland, Porter, Sealy, South Houston, Spring Valley, Stafford, The Meadows, The Woodlands, Waller and West University.

Contact one of the experienced Houston product liability attorneys listed on this site today for a FREE INITIAL CONSULTATION regarding your legal rights.