Former Sen. Chaffee wasn’t particularly activist on behalf of drug companies, but it was clear today on the Hill that some of those companies are extremely unhappy with his replacement, former Rhode Island attorney general Sheldon Whitehouse. To big companies and the tort-reform industrial complex, Whitehouse is evil incarnate. That’s because, before coming to the Senate, he was the attorney general of Rhode Island, where he had the nerve to hire the big-shot plaintiff firm Motley Rice on a contingency basis to represent the state of Rhode Island in litigation against lead paint manufacturers. Motley Rice scored a major jury verdict for the state last year that potentially puts the paint companies on the hook for billions of dollars in paint clean-up costs.
In 2006, the companies campaigned aggressively against Whitehouse, who also earned the wrath of groups like the American Tort Reform Association (ATRA), which has since been pushing legislation to ban states from contracting with plaintiff lawyers. But here he was today, presiding over a Senate Judiciary Committee hearing on the mind-numbing question of whether federal regulatory agencies have been improperly inserting “preemption” language into regulations that would ban lawsuits over dangerous products from coming into state courts—an issue near and dear to the drug companies’ hearts.
Whitehouse, a veteran prosecutor, made ample use of the gavel (and absence of any other senators in the room) to put on an entertaining show. He smirked only a little as he faced off with a lawyer for the drug companies dispatched by the U.S. Chamber of Commerce, as well as Viet Dinh, Bush’s former assistant U.S. attorney general for legal policy.
Whitehouse used the opportunity to bash ATRA, noting that its spokesman had told the Washington Post yesterday that “Regulatory experts are better arbiters of what is a potential threat to a consumer than a judge or jury in Michigan.” Whitehouse then asked Dinh, now a professor at Georgetown Law School, “How do you think Ronald Reagan would respond to the notion that bureaucrats are better” than judges and juries at identifying what’s a threat to their communities?
Dinh pointed out that Reagan had a dim view of the “litigation system,” but conceded that the preemption movement is a bit at odds with the Republican Party’s professed fealty to state’s rights.
No word on whether the Judiciary Committee (or Whitehouse, for that matter) actually plans to do anything about the whole preemption issue, but you can read more about it here, in a report published recently by the Center for Progressive Reform, co-authored by David Vladeck, another Georgetown Law prof who also testified at the hearing today. (As with all such studies, this one comes with its own bias. It’s funded in part by the Pound Civil Justice Institute, which is an arm of the national trial lawyers association.)