Current Issue

Volume 88, Number 6

December 2013

Narrowing the Field: The Case Against Implied Field Preemption of State Product Liability Law

Thomas H. Sosnowski

Federal preemption is one of the most powerful defenses that a product liability defendant can raise. If a court finds that federal law preempts a state law product liability claim, it must dismiss the claim. Dismissal of the state tort claim may eliminate the only source of private liability of defendants and the only source of compensation for plaintiffs. If the applicable federal statute does not contain an express preemption provision, most courts find federal preemption only if a “conflict” exists between the state and federal laws. However, in some areas, courts have held that all state product liability claims in a particular “field” are preempted because an aspect of the field is subject to federal regulation. This Note argues that this broad “field-based” preemption framework, referred to as implied field preemption, should not be invoked to preempt state law product liability claims, despite the Supreme Court’s recent decision in Kurns v. Railroad Friction Products Corp. The case against the field-based framework is strong when viewed from doctrinal, theoretical, and historical perspectives. The case studies presented in this Note illustrate the problems that result when an appellate court finds implied field preemption. Field preemption prevents lower courts from determining whether the state claims in question and federal law are actually incompatible. In some cases a field-based framework defeats the purposes behind both state tort law and federal preemption by eliminating product liability law’s deterrence and compensation functions without providing a corresponding benefit to the federal regulatory structure.