Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 9. Liability without Fault?
3. A presumption against preemption? One doctrinal answer that has emerged is that courts
should generally presume that federal law does not preempt state law. Professor Roderick Hills
argues that this presumption is justified as a way to jump-start democratic deliberation in the
national lawmaking process:
Because of the size and heterogeneity of the population that it governs, Congress
has institutional tendencies to avoid politically sensitive issues, deferring them to
bureaucratic resolution and instead concentrating on constituency service.
Nonfederal politicians can disrupt this tendency to ignore or suppress political
controversy by enacting state laws that regulate business interests, thus provoking
those interests to seek federal legislation that will preempt the state legislation. In
effect, state politicians place issues on Congress’s agenda by enacting state
legislation. Because business groups tend to have more consistent incentives to
seek preemption than anti-preemption interests have to oppose preemption,
controversial regulatory issues are more likely to end up on Congress’s agenda if
business groups bear the burden of seeking preemption. . . . Therefore, by adopting
an anti-preemption rule of construction, the courts would tend to promote a more
highly visible, vigorous style of public debate in Congress. . . .
Hills contends that regulated industries favoring preemption have systematically “greater
capacity” to obtain votes on preemption than do the opponents of preemption. Only the former,
goes the argument, have “an interest in regulatory uniformity for its own sake” because only
national business and industry groups benefit greatly from national uniformity. See Roderick M.
Hills, Jr., Against Preemption: How Federalism Can Improve the National Legislative Process, 82
N.Y.U. L. REV. 1 (2007).
4. What did Geier mean for future preemption cases? The next case, in the prescription drug
context, contains a lengthy debate about what exactly were the core principles of Geier and how
far they should reach.
Wyeth v. Levine, 555 U.S. 555 (2009)
STEVENS, J.
Directly injecting the drug Phenergan into a patient’s vein creates a significant risk of
catastrophic consequences. A Vermont jury found that petitioner Wyeth, the manufacturer of the
drug, had failed to provide an adequate warning of that risk and awarded damages to respondent
Diana Levine to compensate her for the amputation of her arm. The warnings on Phenergan’s
label had been deemed sufficient by the federal Food and Drug Administration (FDA) when it
approved Wyeth’s new drug application in 1955 and when it later approved changes in the drug’s
labeling. The question we must decide is whether the FDA’s approvals provide Wyeth with a
complete defense to Levine’s tort claims. We conclude that they do not.
Phenergan is Wyeth’s brand name for promethazine hydrochloride, an antihistamine used
to treat nausea. The injectable form of Phenergan can be administered intramuscularly or
intravenously, and it can be administered intravenously through either the “IV-push” method,
whereby the drug is injected directly into a patient’s vein, or the “IV-drip” method, whereby the
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