A U.S. Supreme Court decision that people injured by defective medical devices cannot sue the manufacturers of those devices has evoked strong disagreement from Arkansas Chief Justice Jim Hannah.

Hannah wrote in an opinion that he was “compelled to express my dismay at the summary abandonment of venerable principles of state common law that have been developed over many generations.  … In the place of well-reasoned judicial decisions reaching back to the England of Blackstone, injured plaintiffs are told that instead of looking to their common law for redress they must look to a regulatory agency that has no power to grant them any redress.”


(The regulatory agency referred to is the Federal Drug Administration, which is supposed to keep unsafe devices from being sold. The FDA does not award compensation for persons injured or killed by defective products.)

Gary and Joy DeSpain sued Dr. James L. Bradburn and Soundtec Inc. in Benton Circuit Court. They said that Gary DeSpain was injured by a defective medical device manufactured by Soundtec and implanted in DeSpain’s ear by Bradburn. Circuit Judge David S. Clinger granted summary judgment to Soundtec, saying that federal law — the Medical Device Amendment to the Food, Drug and Cosmetic Act — prohibited state-court suits against the manufacturers of medical devices. The Arkansas Supreme court overruled Clinger. The U.S. Supreme Court overruled the Arkansas court, forcing the Arkansas court to issue a ruling in favor of Soundtec. Hannah concurred in the decision, having no real alternative, but he wrote in his concurring opinion:


“[T]he MDA, which was enacted to protect the public against defective and unsafe medical devices through federal regulation, is now turned on its head and instead grants immunity to the providers of medical devices. I believe that the United States Congress will step in to amend the MDA and heal the injury caused in this case; however, the injury done to the common law and principles of federalism will not be so easily healed.”

(He means that Congress can prevent what happened to the DeSpains from happening to anyone else. The DeSpains themselves are out of luck.)


Presiding over a different but similar case, U.S. District Court Judge William R. Wilson Jr. of Little Rock also is concerned about government bureaucrats usurping the duties of juries. Wilson, however, is not retreating from a ruling he made against the bureaucrats.

The case before Wilson is Donna Scroggin v. Wyeth et al, a suit alleging that a drug caused breast cancer. The case is not identical to the DeSpain case, which involved legislation on medical devices, and is not covered by the U.S. Supreme Court decision (Riegel v. Medtronic Inc.), or so Wilson believes. But all three cases involve “preemption,” a concept under which state lawsuits must give way to federal regulation.

Wyeth’s attorneys asked Wilson to dismiss Scroggin’s lawsuit because of preemption by the FDA. He denied the motion, saying there was no preemption in the case. After the Riegel decision, he said his denial still stands, he said, but he added that his confidence of being correct was now at a lower level. Then he took a swipe at preemption and its promoters:

“The thought underlying expansive preemption (‘backdoor federalization’) is that bureaucratic experts are better at determining what is reasonable, what is too dangerous, etc., than are juries. Over the past several years I believe all three branches of government have become more and more distrustful of juries. They seem to forget that a jury is a cross section of the citizens who elected them to office (or elected those who appointed them). In political campaigns these citizens are paragons of virtue; but when they are called for jury service, they somehow become incapable of making important decisions. The language in the decisions favoring preemption is high-flown; but, at bottom, it reflects distrust of the randomly selected citizens who sit on juries. Perhaps our public officials, including judges, have read too much Plato and too little Alexis de Tocqueville. Trial by jury is the essence of government reposed in the people. We should trust this institution in fact, not just in word.”


The Conference of Chief Justices, of which Hannah is a member, has adopted resolutions opposing “federal usurpation of state court authority as guaranteed by the United States Constitution,” and urging Congress to resist policies “that threaten principles of federalism or that seek to preempt proper state court authority.”

Several justices of the U.S. Supreme Court are members of the Federalist Society, a group that purports to respect the rights of states. Justice Antonin Scalia, who wrote the majority opinion in the Riegel case, is one of the professed Federalists.