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• Legal Theory Seeks to Curtail Tort Cases  

In 2001, after years as a lawyer for pharmaceutical and tobacco companies, Daniel Troy was tapped as President George W. Bush's general counsel of the Food and Drug Administration. Almost immediately, the FDA filed several friend of the court briefs on behalf of medical device and drug companies being sued in state courts. The briefs argued that it is not the place of state judges and juries to question the safety of a drug that FDA scientists have approved.

Troy was applying the preemption principle -- which argues that federal regulations of a product preempt consumers from suing the maker of that product in state civil courts. Troy left the FDA in 2004, but the U.S. Supreme Court subscribed to his logic earlier this year in a ruling that preempted lawsuits against makers of medical device. It could do the same this fall, in a case about consumers' right to sue drug companies. The Bush administration's once obscure legal argument for curtailing lawsuits against industry has become the nation's predominant opinion.

But at a congressional hearing Wednesday, Democrats threw down the gauntlet. The House oversight committee said that it has had many disagreements with this administration, but this preemption principle is offensive. Rep. Henry A. Waxman (D-Calif.) and Rep. Bruce Braley (D-Ia.) spent most of the day arguing that for 100 years FDA regulations have coexisted, and benefited, from state civil suits. If the preemption principle prevails in the court this fall, the committee said Congress would write legislation saying that FDA regulations do not take away a consumer's right to sue.

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