The Opioid Litigation: The FDA is MIA

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power.

My purpose here is not to resolve the divide among the few courts that have weighed in on the preemption defense in the opioid cases before them; instead, it is to highlight the appropriate inquiry in which the courts should engage. Namely courts should scrutinize the regulatory actions taken by the FDA and evaluate the extent to which state tort law actions fall within or outside of the bounds of the risk analysis already undertaken by the FDA. Such an analysis would put pressure on the FDA to weigh in—either on its own or as invited by the courts—on the balance between its regulatory actions and the need for state tort law causes of action. The courts would then scrutinize input from the agency under “hard look” review.

No longer could the FDA remain on the sidelines, as it has to date, amidst a public health crisis that is now playing out in the courts.