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...
