When we (belatedly) learned of the Supreme Court’s abolition of the so-called “presumption against preemption” in express preemption cases, that knowledge just about made our year. Since then we’ve written several posts about that case, Puerto Rico v. Franklin-California Tax-Free Trust, 136 S. Ct. 1938 (2016), and its effect on preemption cases in our drug/device sandbox. While such a presumption may have some merit when broad “field” preemption is considered, there’s simply no need for it when the subject is express preemption or preemption defined by conflict with federal law.
Here’s another presumption against preemption post – with a warning.
The case, Mata v. Allupick, Inc., 2022 U.S. Dist. Lexis 87656 (N.D. Ala. May 16, 2022), has nothing to do with prescription medical products. Rather, it involves a truck accident. One of the defendants, a freight broker, sought dismissal on preemption grounds – that a federal statute expressly preempted “any claim relating to how it performs its function of hiring motor carriers.” Id. at *4. We wouldn’t really care except, once Mata began discussing express preemption, it stated:
“[E]xpress preemption clauses must be construed narrowly” when “the subject matter, such as the provision of tort remedies to compensate for personal injuries, is one that has traditionally been regarded as properly within the scope of states’ rights.”
Id. at *5 (quoting Irving v. Mazda Motor Corp., 136 F.3d 764, 767 (11th Cir. 1998)). While Mata nowhere mentions the former “presumption” that is now a post-P.R. v. Franklin no-no, that quote seemed highly suspicious.
So we took a look at Irving itself to see what, if any, relationship the quoted language might have to the now-defunct presumption against preemption. Sure enough, in Irving that quote was inextricably intertwined with the erstwhile presumption against preemption:
[A] strong presumption exists against finding express preemption when the subject matter, such as the provision of tort remedies to compensate for personal injuries, is one that has traditionally been regarded as properly within the scope of the states’ rights. Thus, express preemption clauses must be construed narrowly.
136 F.3d at 767 (citations, quotation marks, and footnote omitted) (emphasis added). We’ve emphasized the language that Mata quoted. Plainly, Mata simply deleted the “p word” and then applied the same substantive presumption-driven standard despite the Supreme Court’s express abolition of that presumption.
That’s dishonest – but unfortunately not uncommon. What happened in Mata reminds us of: (1) what happened after Fed. R. Civ. P. 26(b)(1) was amended to delete the much-abused “reasonably calculated” scope-of-discovery standard. Courts sought to evade the new, tighter standard by citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978), which applied the old standard, without mentioning that the Rule had been changed.
Mata also reminds us of: (2) the numerous courts that ignored the 2010 amendment to Fed. R. Evid. 702 and cited to superseded precedent. These decisions did that in order to keep holding issues, such as the sufficiency of the factual basis for expert testimony, to be jury questions when the new Rule 702 expressly consigned them to the court’s gatekeeping function. We discussed that phenomenon in our “Don’t Say Daubert” post, here. As we also discussed, that continuing sabotage of the 2010 amendment recently prompted yet another amendment to Rule 702, which was recently approved by the Advisory Committee on Evidence Rules.
Mata leads us to warn our readers to be on the lookout for similarly retrograde arguments and opinions concerning express preemption. We need to call out Plaintiffs who argue for the same old presumption against preemption-influenced standards, only without using the dreaded p-word. Equally, decisions like Mata that do the same deserve criticism for their attempts to evade controlling Supreme Court precedent.