Not quite two years ago, the United States Supreme Court did something that we liked a lot – it abolished the so-called “presumption against preemption” in express preemption cases. It did that in a bankruptcy case, Puerto Rico v. Franklin-California Tax-Free Trust, 136 S. Ct. 1938 (2016) (“Franklin”), so it took a little while before we found out about it. Once we did, we immediately let the word be known:

The plain text of the [preemption clause] begins and ends our analysis. Resolving [the question] for purposes of the pre-emption provision begins “with the language of the statute itself,” and that “is also where the inquiry should end,” for “the statute’s language is plain.” And because the statute “contains an express pre-emption clause,” we do not invoke any presumption against pre-emption but instead “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”

Id. at 1946 (emphasis added).

Now, when the Supreme Court makes a holding like that about preemption, that should be the end of the matter. But as we’ve pointed out many times before, strange things tend to happen when preemption mixes with state-law product liability actions. So, now that nearly two years have passed, how well has the Supreme Court’s abolition of the presumption against preemption in express preemption cases been respected by the lower courts?

Generally, the courts have followed the Supreme Court’s lead. The Ninth Circuit, which sometimes has had to be reigned in by the Court, did not stray on this issue. In Atay v. County of Maui, 842 F.3d 688, 699 (9th Cir. 2016), a preemption case involving genetically modified foods, the court placed the abolition of the presumption against preemption among its “federal preemption principles”:

Where the intent of a statutory provision that speaks expressly to the question of preemption is at issue, “we do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”

Id. at 699 (quoting Franklin). With no adverse presumption, the state action in Atay – an attempt to ban the growing of anything genetically modified – was held preempted. Id. at 702-03.

The Eighth Circuit in Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017), also followed Franklin:

In determining the meaning of an express pre-emption provision, we apply no presumption against pre-emption, and we “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.”

Id. at 817. Finding the text of the relevant statute (involving airline deregulation) “highly elastic and so of limited help,” id. (citation and quotation marks omitted), Watson concluded that the plaintiff’s wrongful discharge claim was “too tenuous, remote, or peripheral to [be] expressly pre-empted. Id. at 818.

In EagleMed LLC v. Cox, 868 F.3d 893, 903 (10th Cir. 2017), another airline deregulation case, the court found that air ambulance services were governed by the statute, and therefore state worker’s compensation claims against them were expressly preempted. As for any presumption against preemption:

[W]hen a statute contains an express preemption clause, “we do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.” And when the statute’s language is plain, our inquiry into preemption both begins and ends with the language of the statute itself.

Id. at 903 (citing Franklin). Because not “a single textual reason” was offered in opposition to preemption, the state claims failed. “[P]olicy reasons cannot trump the plain language of the statute.” Id. at 904.

More directly applicable to what we do, Conklin v. Medtronic, Inc., __ P.3d __, 2017 WL 4682107 (Ariz. App. Oct. 19, 2017), likewise recognized the demise of the presumption against preemption in a medical device product liability case. “While federal laws are presumed not to preempt state laws, courts do not invoke that presumption when the federal statute contains an express preemption clause.” Id. at *2. In addition to Franklin, Conklin cited the four-justice dissent in Cuomo v. Clearing House Ass’n, L.L.C., 557 U.S. 519, 554 (2009) (“There should be no presumption against pre-emption because Congress has expressly pre-empted state law in this case.”), and the absence of any application of a presumption against preemption in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). Every product liability claim except allegations of failure to make FDA-required reports was held preempted in Conklin.

Federal district courts have reached the same result. In In re Smith & Nephew Birmingham Hip Resurfacing (BHR) Hip Implant Products Liability Litigation, the MDL judge recognized that “[r]ecently, the Supreme Court explained that a court should not apply a presumption against preemption when a ‘statute contains an express pre-emption clause,’” and did “not rely on a presumption against preemption” not that it seemed to make much difference. ___ F. Supp.3d ___, 2018 WL 1471684, at *6 n.8 (D. Md. March 26, 2018). Another unbound court, Olmstead v. Bayer Corp., 2017 WL 3498696, at *3 n.2 (N.D.N.Y. Aug. 15, 2017), declared that, after Franklin, assertion of presumption against preemption in express preemption was “frivolous”:

Plaintiff’s argument that there is a strong presumption against preemption and that this presumption applies to the MDA’s express preemption clause is frivolous.

Id. at *3 n.2 (Franklin citation and quotation omitted). Medical device-related claims were preempted. Another New York court, Canale v. Colgate-Palmolive Co., 258 F. Supp.3d 312 (S.D.N.Y. 2017), pointed out in another FDCA case, that the plaintiffs’ assertion of an “assumption” that common-law claims were not preempted was contrary to law:

Defendant correctly points out that where, as here, Congress has expressly manifested its intent to preempt state law, no presumption against preemption arises. [Franklin citation omitted] Rather, courts “focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.”

Id. at 319 (quoting Chamber of Commerce of the U.S. v. Whiting, 563 U.S. 582, 594 (2011)).

The following bound courts – from the Ninth and Tenth Circuits, also rejected any presumption against preemption in reliance on Franklin. In re Chrysler-Dodge-Jeep Ecodiesel Marketing, Sales Practices, & Products Liability Litigation, ___ F. Supp.3d ___, 2018 WL 1335901, at *43 (N.D. Cal. March 15, 2018); Kaiser v. CSL Plasma Inc., 240 F. Supp.3d 1129, 1135 (W.D. Wash. 2017) (implied preemption case); In re Bard IVC Filters Products Liability Litigation, 2017 WL 5625547, at *4 (D. Ariz. Nov. 22, 2017); In re Syngenta Ag Mir 162 Corn Litigation, 2016 WL 4382772, at *3 (D. Kan. Aug. 17, 2016).

Finally, as an example proving our prior proposition that strange things happen when preemption and product liability mix, the Third Circuit in Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 771 n.9 (3d Cir. 2018), so far uniquely, decided that it wasn’t going bound by the Supreme Court’s decision in Franklin. Unless and until the Supreme Court rejects the presumption in a product liability case, the Third Circuit will continue to apply it – everybody else be damned:

We disagree with [defendant’s] assertion that “[a]ny presumption against express preemption no longer exists.” [Defendant] relies on [Franklin] . . . but that case did not address preemption of claims invoking “historic . . . state regulation of matters of health and safety,” such as the products liability claims at issue here. As [Franklin] does not “directly control[ ]” here, we “leav[e] to [the Supreme Court] the prerogative of overruling its own decisions,” Agostini v. Felton, 521 U.S. 203, 237 (1997), and continue to apply the presumption against preemption to claims, like those in this case, that invoke “the historic police powers of the States,”

Shuker, 885 F.3d at 771 n.9 (citations to Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) omitted).

Just like that, without acknowledging either: (1) that the Supreme Court had already refused to apply a presumption against preemption to the same preemption clause in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008); or (2) that its ruling was in conflict with every other court of appeals decision to rule on the question, Shuker chose to ignore an on-point Supreme Court decision that was less than two years old.

Moreover, the Shuker panel evidently went where even the Shuker plaintiffs were loath to go. The plaintiffs in their two briefs (there were cross-appeals in Shuker) didn’t even attempt to argue a presumption against preemption. See Brief of Appellants, 2017 WL 413755 (3d Cir. filed Jan. 23, 2017); Reply Brief of Appellants to Brief of Appellee Smith & Nephew, Inc., 2017 WL 2211289 (3d Cir. filed May 8, 2017). Heck, plaintiffs in Shuker didn’t even cite Lohr. We keep thinking appellate judges should know better than to do things like this, and perhaps they do, but strange things happen when preemption meets product liability.