In Kreifall v. Excell, Excell’s “Preemption argument” was tried and soundly rejected by the Wisconsin State Supreme Court and then was denied review by the US Supreme Court in Kreifall v. Excell (Cargill subsidiary). See online version.
Guest Blogger – Andy Weisbecker
In the Deborah Fellner v. Tri-Union Seafoods d/b/a Chicken of the Sea opinion, issued by the US Court of Appeals, Third Circuit, on August 19, 2008, the court protected the right of the consumer plaintiff to pursue her claim against the manufacturer of contaminated tuna products. The defendant tuna producer had argued that the federal regulatory approach by the US Food and Drug Administration (FDA) related to the risk of mercury in tuna products had preempted the consumer’s right to proceed with her claim for damages against the producer based on New Jersey’s product liability laws. The Court of Appeals however, found that the FDA’s related activity was not sufficient to warrant the preemption of the state personal injury claims, and allowed the consumer to proceed with her action against the producer.