law-preemption-federal | FAA vs TAA preemption issues |  

FEDERAL PREEMPTION

A state law that conflicts with federal law is preempted and has no effect.  U.S. CONST. art. VI, cl. 2;
Maryland v. Louisiana, 451 U.S. 725, 747 (1981); BIC Pen, 251 S.W.3d at 504.  State law may be
preempted in three ways:  (1) expressly, by a federal law specifically preempting state law; (2)
impliedly, by the scope of a federal law or regulation indicating Congress intended the federal law or
regulation to exclusively occupy the field; or (3) impliedly, by the state law conflicting with a federal
law or regulation to the extent it is impossible to comply with both or by the state law obstructing
Congress’s objectives as reflected by the federal law.  BIC Pen, 251 S.W.3d at 504.
BIC Pen Corp. v. Carter, 251 S.W.3d 500, 511 (Tex. 2008)


RECENT SUPREME COURT CASES RELATING TO PREEMPTION

Bic Pen Corp. v. Carter, No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability, child injured by
cigarette lighter)
Six-year-old Brittany Carter was burned when her five-year-old brother accidently set fire to her dress with a BIC
lighter.  The trial court entered judgment against BIC based on jury findings that the lighter was defectively designed
and manufactured and that each of the defects caused Brittany’s injuries.  The court of appeals affirmed based on
the defective design finding and did not reach BIC’s other issues.  BIC Pen Corp. v. Carter, 171 S.W.3d 657, 662 (Tex.
App.—Corpus Christi 2005), rev’d 251 S.W.3d 500 (Tex. 2008).  In a prior appeal we held that the design defect claim
was preempted by federal law and remanded the case to the court of appeals.  BIC Pen Corp. v. Carter, 251 S.W.3d
500, 511 (Tex. 2008).  The court of appeals then affirmed the trial court’s judgment based on the manufacturing
defect finding.  ___ S.W.3d ___. We conclude that no evidence supports the finding that a manufacturing defect
caused Brittany’s injuries.  We reverse and render judgment for BIC.
Conclusion. The facts of this case are unfortunate.  Nevertheless, we must apply established legal principles in
reviewing the parties’ positions.  In applying those principles, we conclude there is legally insufficient evidence to
support the finding that manufacturing defects in BIC’s Subject Lighter were a cause-in-fact of Brittany’s injuries.  We
reverse the court of appeals’ judgment and render judgment for BIC.
BIC PEN CORPORATION v. JANACE M. CARTER, AS NEXT FRIEND OF BRITTANY CARTER; from Matagorda County;
13th district (13-03-00560-CV, ___ SW3d ___, 08-18-05) 2 petitions         
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court. [
pdf]
(Justice Green not sitting)


No HIPAA Preemption
In re Lester Collins, MD, No. 07-0737 (Tex. Jun. 5, 2009)(O'Neill) (discovery mandamus brought
by doctor; trial court's
protective order lifted covering ex parte contacts with witnesses)(medical
health care information privacy, patient's release as condition of bringing med-mal suit, no HIPAA
preemption)
IN RE LESTER COLLINS, M.D.; from Smith County; 12th district
(12-06-00078-CV, 224 SW3d 798, 05-14-07)
The Court conditionally grants the petition for writ of mandamus.
Justice O'Neill delivered the opinion of the Court.

Determination of whether valid agreement to arbitrate was formed a question of
state law, not preempted
Poly-America argues that the FAA’s “strong presumption” favoring arbitration applies in this case,
and furthermore that the FAA preempts all state public-policy grounds for finding the agreement to
arbitrate unenforceable. See In re R&R Personnel Specialists of Tyler, Inc., 146 S.W.3d 699, 705
(Tex. 2004) (holding that the FAA preempts “any public policy underlying the Texas workers’
compensation statutes that is contrary to the enforceability of arbitration agreements”). Because
neither this presumption nor federal preemption applies in a state court’s assessment of whether
parties have entered into a valid and enforceable agreement to arbitrate under state contract law, we
disagree.  
In re Poly-America, LP, 262 S.W.3d 337 (Tex. 2008) (arbitration in employment context,
FAA, retaliatory discharge, employment law, limitation of remedies, unconscionability argument
challenge sustained, offending provision stricken, but remainder of arbitration agreement given
effect).

Jones Act Preemption
In Re Global Santa Fe Corp., No. 07-0040 (Tex. 2008) (Willett) (silica litigation, Jones Act preemption
issues)
IN RE GLOBALSANTAFE CORPORATION; from Harris County; 14th district (14-06-00625-CV, ___
SW3d ___, 12-19-06)
The Court conditionally grants the petition for writ of mandamus.
Justice Willett delivered the opinion of the Court.

Federal Preemption in Product Liability Cases  
Bic Pen Corp. v. Carter, No. 05-0835 (Tex. Apr. 18, 2008)(David Medina) (products liability, design
defect claim, implicit federal preemption of state tort law, manufacturing defect claim)    


Interstate Commerce Commission Termination Act ("ICCTA")
07-1061
FORT BEND COUNTY, TEXAS v. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY
COMPANY; from Fort Bend County; 14th district (
14-05-01106-CV, 237 SW3d 355, 06-21-07, pet.
denied Jun 2008) (Justice O'Neill not sitting) (condemnation eminent domain, road easement, federal
preemption)
Appellant, Fort Bend County, appeals the judgment awarding the Burlington Northern and Santa Fe
Railroad Company $90,756.51 as reimbursement of expenditures in the adjustment and relocation of
an eligible utility facility, required by the County's condemnation of land for a larger railroad
crossing.   Because we find the County is federally preempted under the ICCTA from condemning a
public crossing that cuts Burlington's passing track, we vacate the trial court's judgment and dismiss
the case.