Using Federal Preemption to Defend Products Liability Claims

Author:  Lee Hoyle, Esq.

Editor:  Brian Cafritz, Esq.

Although the UCC offers some consistency between states, Products liability lawsuits, in general, are creatures of state law.  50 states means 50 potentially different tort laws.  Each state can take its own approach to issues – from whether to adopt strict liability to the standard of admissibility for expert testimony to admissibility of other complaints about the product – and decide differently.  Therein lies the problem. The potential disparity between outcomes from one state to the next can cause nightmares for anyone attempting to evaluate risks associated with selling products across the country.  Fortunately (at least for products liability defendants), in some cases, Federal law may dictate a single, consistent answer: no products liability on a theory inconsistent with Federal law.

Even where states have answered a question one way, Federal law may have something else to say.  Federal law is the supreme law of the land, so any conflicting state law cannot be enforced.  Such conflicts rarely arise in tort law, because there are few federal laws addressing torts.  There are some industries that receive claims preemption as to certain claims due to extensive federal regulation of the industry as a whole.  For example, drug manufacturers could not be sued for failure to warn when their labels complied with FDA requirements in Pliva, Inc. v. Mensing, 564 U.S. 604 (2011), while an automaker could not be held liable for failing to include airbags when such a requirement conflicted with the Department of Transportation’s regulations in Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000).

One interesting (and still developing) area of law concerns e-commerce and life in the digital age.  Claims involving alleged misrepresentations of products over the internet may be the subject of Federal Preemption under the Communications Decency Act, 28 U.S.C. § 230.  The Communications Decency Act was originally intended to prevent websites from being held liable for their users’ posts.  Congress was concerned that state tort law might hamper the growth of the internet if websites were liable for user-generated content.  One need only consider the defamation liability that Facebook or Twitter might face if they were liable for their users’ rants to understand the need for such a law.  The CDA was enacted to provide immunity to the entities that create websites and offer platforms that allow individuals to post their own words for the world to view.

The CDA is not, however, applicable only to defamation law.  Instead, the statute provides that the immunity extends to any cause of action that would treat the website as a “publisher or speaker of any information” provided by someone else. 28 U.S.C. § 230(c)(1).  Far from protecting only defamation, this statute has been interpreted to provide absolute immunity to certain products liability claims as well.  To see how, consider the e-commerce platforms that allow third parties to sell products online.  Third-party marketplaces and auction sites regularly contain information about products for sale.  In cases where the companies do not sell their own products, but rather, allow third parties access to their websites to describe and sell those products, the website might be liable on a traditional products liability theory in certain states without the CDA.  With the CDA, however, the website owner might not be accountable for the third party seller’s (mis)representations about the product.  This is because the website would have to be treated as the publisher or speaker of the seller’s information to be held liable, and thus, the claim is preempted by the CDA. See, e.g. Hinton v. Amazon.com.DEDC, LLC, 72 F. Supp. 3d 685, 687-90 (S.D. Miss., 2014) (discussing cases).

The CDA shows how a seemingly narrow Federal law might provide an insurmountable defense to a state law cause of action.  Whenever you receive a new products claim, one question should be whether the theory is preempted by Federal law.  If so, the claim might be subject to quick and early dismissal.

 

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