As an Atlanta lawyer handling both defective product and motor carrier cases, I have been troubled over the past several years by a trend of federal agencies seeking to block juries from ever getting a chance to consider the evidence  against manufacturers through the doctrine of federal preemption, often beyond anything expressly intended by Congress. Unfortunately, the U.S. Supreme Court has been lending support to that doctrine. Now, however, U. S. District Judge William R. Wilson, Jr., in the Eastern District of Arkansas, has forthrightly "called a spade a spade."  In the case of In re: PREMPRO PRODUCTS LIABILITY LITIGATION, DONNA SCROGGIN  v. WYETH, et. al., MDL Docket No. 4:03CV1507-WRW, 4:04CV01169, Judge Wilson entered the following Order.


As Defendants note, I did state that I was “as confident as a Christian with four aces” with respect to my FDA preemption ruling. In view of the United States Supreme Court’s decision in Riegel v. Medtronic, Inc., 1128 S. Ct. 999 (2008). and other recent appellate decisions, my confidence, while still in place, is at a lower level.

It appears to me that an expansive reading of preemption is a part of the overall “assault upon the citadel of the right to trial by jury” (to paraphrase Cardozo). The finer points of the vice of too much preemption are well presented in Justice Ginsberg’s dissent in Riegel, and by Judge Thomas Ambro in his dissent in Colacicco v. Apotex, 22008 WL 927848, at *18-26 (3d Cir. April 8, 2008).  The thought underlying expansive preemption (“backdoor federalization”, Id. at 25.) 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.

IT IS SO ORDERED this 16th day of April, 2008.
/s/ Wm. R. Wilson, Jr.