RECENT DEVELOPMENTS IN TOXIC TORTS AND ENVIRONMENTAL LAW

FEDERAL PREEMPTION A. Claims That Cigarettes Are Unreasonably Dangerous Per Se Impliedly Preempted In Badon v. R.J. Reynolds Tobacco Co., a Louisiana appellate court affirmed the trial court's determination that federal law imph'edly preempted plaintiffs claims that cigarettes are unreasonably dangerous per se.1 Plaintiff sued various tobacco companies alleging that she contracted throat, larynx, and vocal cord cancer from smoking defendants' cigarettes and also alleging failure to warn, suppression, and unreasonably dangerous per se claims of recovery.2 Her sole appeal was the rejection of her claim that cigarettes are unreasonably dangerous per se, relying on a Louisiana case holding that plaintiff can recover against the manufacturer of a product if the product is unreasonably dangerous per se, i.e., too dangerous to be placed on the market. "3 Plaintiff argued that the Supreme Court's holding in Cipollone v. Liggett Group Inc.4 was controlling and, in particular, that the express language in the federal cigarette labeling law barred some, but not all, common law damages actions; as such, her claim was not preempted because there was no express language forbidding application of Louisiana's unreasonably dangerous per se cause of action.5 The court disagreed, holding that Cipollone dealt with express preemption, whereas the present case dealt with implied conflict preemption.6 Ultimately, the court agreed with the trial court in concluding that plaintiffs unreasonably dangerous per se claims were preempted because "a ruling that cigarettes are unreasonably dangerous per se would have the effect of imposing a ban on the manufacture/sale of cigarettes where Congress has not enacted a ban. 7 B. Claims Barred by Michigan Statute Establishing Absolute Defense for Drugs and Their Labeling A federal court ruled in Griffus v. Novartis Pharmaceutical Corp. that Michigan's "absolute defense" for manufacturers of prescription drugs approved by the Food and Drug Administration (FDA) barred claims by plaintiff who was harmed by a drug used in a clinical trial.8 Plaintiff claimed she suffered injuries from participating in a clinical trial sponsored by defendant for the purpose of determining whether Trileptal, approved for the treatment of seizures and epilepsy, is effective in treating pain associated with diabetic neuropathy.9 A Michigan statute provided that a product was not defective or unreasonably dangerous, and the seller was not liable, if (1) the drug was a