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5 décembre, 2007 15:59

Laurel Newby

Law.com
12-05-2007

The Supreme Court justices on Tuesday heard a case involving whether federal law governing the Food and Drug Administration's pre-market approval of medical devices pre-empts state product liability claims. A second argument concerned peremptory challenges to African-American jurors in a death penalty case in which the prosecutor made references to the O.J. Simpson murder trial.

Riegel v. Medtronic asks whether state law product liability claims involving medical devices that received pre-market approval by the FDA are pre-empted by a provision of the Medical Device Amendments to the Food, Drug and Cosmetic Act.

Charles Riegel and his wife sued Medtronic, the manufacturer of a balloon catheter used in his angioplasty procedure that burst and caused injury. The district court granted Medtronic's motion for summary judgment based on express pre-emption of the claims under the MDA, and the 2nd U.S. Circuit Court of Appeals affirmed.

Several of the justices seemed reluctant to accept the idea that a jury's judgment about the safety and effectiveness of a medical device should be allowed to second-guess the FDA's approval process.

Justice Anthony Kennedy noted that the FDA is "specifically charged with weighing the risks against the probable benefits," and in a state product liability case, "the jury is doing the same thing that the FDA did."

Justice Antonin Scalia expressed a similar concern. "What's going on is simply one jury has decided that in its judgment, there was a safer device that should have been used; and because of the judgment of that one jury, the manufacturer is placed at risk in selling a device that scientists at the FDA have said is OK. I find that extraordinary," Scalia said.

Justice Stephen Breyer said he was worried about whether Congress intended to let state product liability cases challenge devices that the FDA has approved.

"So every time there is an accident or something bad happens, the lawyers assert a design claim and they gear up discovery," Breyer said, asking if Congress "intended that kind of thing when what they're trying to do is have a group of experts really look into this and decide whether [devices should be] marketed or not."

Allison M. Zieve, arguing for the petitioner, referenced cases such as those involving the Dalkon Shield, in which severe injuries resulted in products being recalled because of a design defect.

"In those cases, could Congress have really intended to protect the manufacturer from liability?" she asked.

Former Solicitor General Theodore B. Olson, representing Medtronic, argued that if juries "require products to be changed, they will by definition be either less safe or less available than the FDA has determined is in the best interests of the public."

Deputy Solicitor General Edwin S. Kneedler also argued for the respondent on behalf of the United States as amicus curiae.

In the second case argued Tuesday, Allen Snyder, an African-American, is challenging his murder conviction and death penalty sentence by an all-white Louisiana jury. Snyder attacked his estranged wife and a male friend with a knife, injuring his wife and killing her companion. Snyder argues that the Louisiana Supreme Court on appeal misapplied the U.S. Supreme Court's line of cases, starting with Batson v. Kentucky in 1986, regarding unconstitutional discrimination in jury selection.

After four of the African-American prospective jurors in Snyder's case were removed for cause, the prosecutor struck the remaining five through peremptory challenges. The trial court denied a defense motion for a new trial, finding no Batson violation because the prosecution's peremptory challenges were justified on race-neutral grounds. The Supreme Court of Louisiana affirmed, and after the U.S. Supreme Court remanded the case for consideration in light of the Court's 2006 ruling in Miller-El v. Dretke, the Louisiana high court affirmed again.

The prosecutor made public comments comparing Snyder's case to the Simpson murder trial. Then, during the sentencing phase, after promising not to reference the Simpson case, the prosecutor made further comments to the jury without mentioning Simpson's name. Snyder was tried less than a year after Simpson's acquittal.

During the argument, the justices considered fairly detailed information regarding individual prospective jurors in the case -- particularly some comparisons between the questions the prosecutor asked prospective jurors of different races during voir dire.

Justice Antonin Scalia questioned the accuracy of evaluating the voir dire process in retrospect. On the issue of whether a particular juror was slow in responding to a question about an issue such as the death penalty, Scalia said, "I can't tell that from a cold record. "The [trial] judge is in a much better position to decide those matters."

But Justice Ruth Bader Ginsburg noted that the judge was "quite passive" during voir dire.

Petitioner's counsel Stephen G. Bright agreed with Ginsburg and offered an example.

"One of the more remarkable aspects of this jury selection is when he grants a defense strike for cause, the prosecutor ... says -- 'are you crazy?' And the judge says: 'No.' And they go right on to the next fact," Bright said.

"It sounds like the right answer to me," Scalia quipped.

"It wasn't the right question," Bright said. "I've often wondered about that, but I've never articulated it."

Justice David Souter questioned the judge's finding that the prosecutor's comment about the Simpson case during sentencing was not a racially significant remark because he did not mention Simpson's or Snyder's race.

"Now that is not a critical mind at work, is it?" Souter asked Louisiana Assistant Attorney General Terry M. Boudreaux, who argued for the respondent. Souter's observation prompted laughter from the spectators.

"I would suppose not, Your Honor," Boudreaux said, but he went on to say that the Simpson reference was based on factual similarities with Snyder's case.

"Do you believe that, if there had been a white defendant here, the O.J. Simpson case would have been mentioned?" Souter asked.

When Bordeaux answered yes, Souter told him, "I will be candid [and] say to you, under the -- under the circumstances of the record in front of us, I find that highly unlikely."

The case is Snyder v. Louisiana.

Laurel Newby is a senior editor with Law.com.