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Clark Love & Hutson

The Nationally Recognized Plaintiffs Litigation
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The Nationally Recognized Plaintiffs Litigation Law Firm

Preemption arguments in a defective drug case

On Behalf of | Sep 23, 2022 | Firm News |

If you were given a medication that then caused you harm, then you’re probably looking for some sort of accountability. While you might be able to file a defective drug lawsuit against the medication’s manufacturer, you’re bound to come face to face with some aggressive defenses. Therefore, if you want to protect your ability to recover the compensation that you need to spur your recovery forward, you’re going to have to gain an understanding of those defenses and how to effectively counter them.

Preemption in the defective drug context

One commonly utilized defense argument in these cases is preemption. Here, the drug manufacturer argues that the victim’s claim requests that a state court find that the manufacturer should’ve acted in violation of federal law, which the state court can’t do. This is because federal law is supreme to, or preempts, state law.

For example, one woman lost an argument over harm caused to her by a birth control patch because her argument was that the manufacturer should’ve reduced the amount of estrogen in the patch to render it safer for users. However, the court in that case found that reducing the amount of estrogen would’ve required the manufacturer to seek additional approval from the FDA, meaning that it couldn’t have done what the victim requested without violating federal law.

In other words, in many of these preemption cases, the drug maker argues that it was impossible to comply with both state and federal law, so it chose to abide by the supreme federal laws that were applicable to it, thereby shielding it from liability.

Dealing with a preemption argument in your defective drug case

If the defense is going to argue preemption, it’s likely going to do so early on in your case so that it can try to get the case dismissed without having to dump a lot of time and money into preparing the case. This means that you have to determine if preemption is going to be an issue early on in your case so that you can prepare arguments to counter it before it comes up.

But how do you fight back against a preemption argument? You’re essentially going to have to show that it was possible for the drug manufacturer to comply with both state and federal laws. This means that you have to have an understanding of how the drug in question was made, marketed and administered, as well as how warning labels were created. Then you’ll need to analyze both state and federal laws that are applicable to the situation at hand.

What an attorney can do for you

 If you or a loved one has been injured by a defective drug, you need to think about taking immediate legal action. You must file your case within a certain period of time, otherwise you’ll be blocked from seeking the recovery that you need.

We know that moving fast in these matters can be stressful, but you don’t have to navigate your case on your own. An attorney who is dedicated to this kind of legal practice can walk alongside you every step of the way as you try to litigate for the outcome that you need and deserve. One of these advocates will have an understanding of FDA processes, drug manufacturing shortcomings, and the applicable statutes, case law, and rules of evidence that are pertinent to your case.

So, if you’re ready to fight for accountability and stability, consider reaching out to an advocate who is ready to stand up and make sure that people hear what you have to say.