[Senate Hearing 111-1031]
[From the U.S. Government Publishing Office]


                                                       S. Hrg. 111-1031
 
           PROTECTING PATIENTS FROM DEFECTIVE MEDICAL DEVICES 

=======================================================================

                                HEARING

                                 OF THE

                    COMMITTEE ON HEALTH, EDUCATION,
                          LABOR, AND PENSIONS

                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                                   ON

  EXAMINING S. 540, TO AMEND THE FEDERAL FOOD, DRUG, AND COSMETIC ACT 
WITH RESPECT TO LIABILITY UNDER STATE AND LOCAL REQUIREMENTS RESPECTING 
                                DEVICES

                               __________

                             AUGUST 4, 2009

                               __________

 Printed for the use of the Committee on Health, Education, Labor, and 
                                Pensions


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          COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS

               EDWARD M. KENNEDY, Massachusetts, Chairman

CHRISTOPHER J. DODD, Connecticut           MICHAEL B. ENZI, Wyoming
TOM HARKIN, Iowa                           JUDD GREGG, New Hampshire
BARBARA A. MIKULSKI, Maryland              LAMAR ALEXANDER, Tennessee
JEFF BINGAMAN, New Mexico                  RICHARD BURR, North Carolina
PATTY MURRAY, Washington                   JOHNNY ISAKSON, Georgia
JACK REED, Rhode Island                    JOHN McCAIN, Arizona
BERNARD SANDERS (I), Vermont               ORRIN G. HATCH, Utah
SHERROD BROWN, Ohio                        LISA MURKOWSKI, Alaska
ROBERT P. CASEY, JR., Pennsylvania         TOM COBURN, M.D., Oklahoma
KAY R. HAGAN, North Carolina               PAT ROBERTS, Kansas
JEFF MERKLEY, Oregon
AL FRANKEN, Minnesota
                                       
                                       

           J. Michael Myers, Staff Director and Chief Counsel

     Frank Macchiarola, Republican Staff Director and Chief Counsel

                                  (ii)

  









                            C O N T E N T S

                               __________

                               STATEMENTS

                        TUESDAY, AUGUST 4, 2009

                                                                   Page
Harkin, Hon. Tom, a U.S. Senator from the State of Iowa, opening 
  statement......................................................     1
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     4
    Prepared statement...........................................     7
Franken, Hon. Al, a U.S. Senator from the State of Minnesota, 
  prepared statement.............................................    11
Maisel, William H., M.D., M.P.H., Director, Medical Device Safety 
  Institute, Beth Israel, Deaconess Medical Center, Harvard 
  Medical School, Boston, MA.....................................    12
    Prepared statement...........................................    14
McGarity, Thomas O., Joe R. and Teresa Lozano Long Endowed Chair 
  in Administrative Law, University of Texas School of Law, 
  Austin, TX.....................................................    17
    Prepared statement...........................................    19
Mulvihill, Michael, Patient, Bettendorf, IA......................    24
    Prepared statement...........................................    25
Hutt, Peter Barton, Esquire, Senior Counsel in Food and Drug Law, 
  Covington & Burling, Washington, DC............................    27
    Prepared statement...........................................    28
Roman, Michael G., Patient, Kirkwood, MO.........................    32
    Prepared statement...........................................    34
Burr, Hon. Richard, a U.S. Senator from the State of North 
  Carolina.......................................................    40
Hagan, Hon. Kay R., a U.S. Senator from the State of North 
  Carolina.......................................................    41

                          ADDITIONAL MATERIAL

Statements, articles, publications, letters, etc.:
    Letters of Support...........................................    55
    Letters of Opposition........................................    79

                                 (iii)

  


           PROTECTING PATIENTS FROM DEFECTIVE MEDICAL DEVICES

                              ----------                              


                        TUESDAY, AUGUST 4, 2009

                                       U.S. Senate,
       Committee on Health, Education, Labor, and Pensions,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 2:35 p.m. in Room 
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin, 
presiding.
    Present: Senators Harkin, Hagan, Franken, Burr, and Hatch.

                  Opening Statement of Senator Harkin

    Senator Harkin. The Committee on Health, Education, Labor, 
and Pensions will come to order for this hearing on protecting 
patients from defective medical devices.
    More than 30 years ago, Senator Kennedy championed the 
Medical Device Amendments, a bill that gave the Food and Drug 
Administration long-overdue authority to regulate medical 
devices. In support of that bill, Senator Kennedy said, at the 
time:

          ``Today the medical device industry plays a prominent 
        role at the very heart of American medicine. Many 
        devices today are actually used to sustain life. We 
        will grow more and more dependent upon medical devices 
        in the future. We stand to benefit a great deal from 
        them, but we must be sure that they are safe and 
        effective in order to avoid needless injury and 
        death.''

    Well, today this committee will hear testimony on precisely 
the issue that Senator Kennedy sought to address, the need to 
ensure that the medical devices that patients rely on to stay 
healthy--and, in many cases, alive--are safe and effective.
    We are here because last year in a U.S. Supreme Court case, 
Riegel vs. Medtronic, Inc., the Court held that the Medical 
Device Amendments, a statute whose explicit purpose was, ``to 
provide for the safety and effectiveness of medical devices,'' 
--the Court said that this law preempts State tort claims when 
a medical device causes harm. This means complete immunity from 
lawsuits for corporations that endanger consumers with unsafe 
devices. The upshot is that a negligent corporation could not 
be held accountable and victims could not receive fair 
compensation, and thus, consumers are at risk.
    Unfortunately, this has had catastrophic consequences for 
ordinary Americans. Take the example of Avery DeGroh, of 
McHenry, IL. She was born with an hereditary heart defect that 
put her at risk for arrhythmia. When she was only 2 years old, 
her doctor recommended that, as a precaution, she have a 
defibrillator implanted in her chest. At age 3, she was playing 
in her basement when the defibrillator shocked her nine times. 
When her mother picked her up she felt electric shocks through 
her daughter's body. Avery's parents had the faulty 
defibrillator replaced, but Medtronic told them that the 
company would not cover the cost. Avery's parents are still 
struggling to pay off the medical bills.
    And I'm told that Avery is here in the audience today. Is 
Avery here today?
    Hi, Avery. Good to see you. I like the daisy you have in 
your hair, by the way.
    [Applause.]
    Or consider Judd Orcutt, of Oregon. During his National 
Guard service, where he earned the Army Commendation Medal, he 
sustained a spinal cord injury. In an effort to reduce pain, he 
had his herniated disk replaced with an artificial Charite 
disk--I hope I pronounced that right--manufactured by DePuy 
Spine. Instead of experiencing relief from the artificial disk, 
Judd, like hundreds of others, experienced extreme pain and 
bouts of paralysis. However, because of the Court's ruling in 
Riegel, Judd has no recourse to seek remedies for his injuries.
    And today we'll hear from an Iowan, Michael Mulvihill, who 
received 22 electric shocks within a span of 53 minutes from a 
faulty Medtronic defibrillator. Because of the faulty device, 
he suffered enormous pain, was forced into early retirement, 
and is unable to perform basic functions, such as even driving 
on the Interstate. And we'll be hearing him testify here today.
    As a senior member of this committee, I have worked hard, 
along with others here--Senator Hatch, and others--to ensure 
that the FDA performs its job well. While the FDA approval of 
medical devices is important, it cannot be the sole protection 
for consumers. I say that because FDA approval, as we'll hear 
today, is simply inadequate to replace the longstanding safety 
incentives and consumer protections provided by longstanding 
State tort law.
    No matter how diligently and effectively the FDA does its 
job, it simply cannot guarantee that no defective, dangerous, 
and deadly medical device will reach consumers. As the former 
director of the FDA Center for Devices and Radiological Health 
frankly acknowledged, he said, ``The FDA's system of approving 
devices isn't perfect, and unexpected problems do arise.''
    Last year 15 devices were recalled due to defects. In 2009, 
there have already been 10. The fact is, the FDA conducts the 
approval process with minimal resources and simply does not 
have adequate funds to genuinely ensure that devices are safe 
or to properly and effectively reevaluate approvals as new 
information becomes available. Moreover, the FDA relies on 
manufacturers to provide information about their products. Once 
on the market, the FDA relies on manufacturers to track devices 
and monitor for problems.
    However, without the threat of any liability, there is 
little incentive for manufacturers to report problems to the 
FDA or to the public. This puts thousands of consumers at risk 
of harm. Indeed, thousands have already been harmed in 
instances where manufacturers knew of problems with the device 
but withheld that information from the patients.
    In our system of justice, access to the court system is 
critical to exposing dangers and bringing about remedies. 
Through discovery, litigation can help uncover previously 
unavailable information on adverse effects of products that 
might not have been caught during the regulatory process. 
Litigants can demand documents and information on product risks 
that might not have been shared with the FDA. In this way, the 
public as a whole is alerted to dangers in these medical 
products.
    Finally, preserving people's ability to sue when injured 
provides a very powerful incentive to manufacturers to use the 
utmost care. In short, the threat of liability is the safety 
net that helps repair problems when the FDA or manufacturers 
fail to warn consumers properly. As the U.S. Supreme Court 
noted in another case concerning drug companies--that's the 
Wyeth v. Levine case, ``State tort suits uncover unknown drug 
hazards and provide incentives for drug manufacturers to 
disclose safety risks promptly.'' I ask, Why would we not hold 
device manufacturers to that same standards as we hold drug 
companies?
    I think, sadly, the U.S. Supreme Court fundamentally 
misread Congress's intent in passing the Medical Device 
Amendments in 1976. The Court's ruling, however, is not the 
final say on this matter. And to quote Chief Justice Roberts,

          ``In every area involving an interpretation of a 
        statute, the final say is not with the U.S. Supreme 
        Court; the final say is with Congress. And if they 
        don't like the U.S. Supreme Court's interpretation of 
        it, they can change it.''

    And I might just add, parenthetically, aside, we found that 
with the Americans With Disabilities Act, when the U.S. Supreme 
Court, in three cases, narrowed the scope of the Americans With 
Disabilities Act, in clear contradiction of what we had put in 
our report language.
    You know, when we pass a bill, we don't put in every little 
single thing. We add report language, to try to give guidance 
as to what Congress's intent is. Well, the U.S. Supreme Court 
just threw that overboard, they didn't pay attention to it, and 
so, we had to offer the Americans With Disabilities Act 
Amendments, 2 years ago--it took us about a year to get them 
through, and they got through last year, and President Bush 
signed them into law, which we then overturned the U.S. Supreme 
Court's decisions, to fully enlighten them as to what Congress 
really wanted to do. So, this is something that is not unheard 
of.
    Senator Kennedy, as he did 30 years ago, is fighting to 
ensure that consumers are safe. He has introduced the Medical 
Device Safety Act, S.R. 512, which would reverse the Riegel 
decision. This bill is really about real people who have been 
let down--let down, sometimes catastrophically. Right now, they 
have no access to justice and no ability to hold those who 
caused them harm accountable.
    And with that, I would yield to our Ranking Member, Senator 
Hatch.

                       Statement of Senator Hatch

    Senator Hatch. Well, thank you, Senator Harkin. We 
appreciate the leadership you provide, and miss our friend, 
Senator Kennedy.
    We welcome all of you witnesses here today. This is a very 
important hearing and this is a very important subject--or 
should I say, set of subjects.
    Mr. Chairman, I want to start off by discussing the context 
in which we are holding today's hearing. As everyone in this 
room knows, Congress is in the middle of debating and drafting 
legislation aimed at overhauling our Nation's healthcare 
delivery system. Obviously, we are somewhat divided over what 
is the best approach in this effort, but I think we all want to 
see something done to reduce the healthcare costs in this 
country.
    As we all know, the Medical Device Amendments of 1976, the 
MDA as we call it, established a rigorous system of Federal 
oversight of medical devices. Under this system, devices 
carrying the greatest health risks are subject to premarket 
approval by the FDA. During this process, FDA officials spend a 
tremendous amount of labor-intensive time and hours reviewing a 
single device, consulting outside experts, and analyzing the 
safety-and-effectiveness profile associated with the use of the 
device. And I'm sure our panel will discuss this process in 
more detail, so I'll just say that the FDA's premarket approval 
process for medical devices is extremely rigorous and very 
costly to the manufacturers and really to those who hope for 
the benefits that can come from these medical devices.
    And, as history has shown, the FDA is exceptionally 
efficient. In addition to requiring premarket approval, the MDA 
also requires those who manufacture and market the applicable 
devices to report to the FDA on the implementation and use of 
all approved devices. These reports include any new and 
relevant clinical investigations and scientific studies of 
which the manufacturer knows or reasonably should know. Device 
manufacturers must also report to the FDA any incidents, 
malfunctions, or adverse events that may have contributed to a 
serious injury. The FDA has the authority to revoke its 
approval, and/or order a recall, if it determines the device is 
unsafe under the conditions of its approval and labeling.
    In addition to these rigorous approval and oversight 
requirements, the MDA included an explicit preemption provision 
prohibiting States from establishing or continuing, ``any 
requirement,'' which, ``is different from or in addition to,'' 
any Federal requirement applicable to the device or which, 
``relates to the safety or effectiveness of the device.'' Now, 
this provision was common sense. Given the rigorous and costly 
nature of the FDA approval process, it was in the best 
interests of all shareholders--or, excuse me, stakeholders, 
including patients and consumers, that the States be prevented 
from supplanting this system with their own regimes.
    Now, as we're all aware, in last year's Riegel v. Medtronic 
decision that my distinguished friend has mentioned, the U.S. 
Supreme Court held that this explicit preemption provision also 
applied to tort claims filed pursuant to State common law.
    Now, this was not a surprise move by the Court. It was an 
8-to-1 decision that affirmed the position taken by the 
overwhelming majority of the circuit courts. Yet, I'd have to 
say, the personal injury lawyers and their allies in Congress 
have painted this decision as an unexpected change in the law 
in order to advance their preexisting agenda to weaken Federal 
preemption.
    The result of this effort is the Medical Device Safety Act. 
The legislation we're discussing today would alter the MDA's 
preemption provision to state that it does not apply to actions 
for liability under State law.
    Now, my opposition to this approach stems from many 
factors. First, I do not believe that randomly selected jurors 
have the necessary scientific and clinical knowledge to perform 
the same level of analysis--and review--as the analysis and 
review by the experts at the FDA. Yet, in essence, this 
legislation would supplant the findings of the FDA with those 
of juries in State courts.
    Now, this is not only bad policy from the perspective of 
device safety, it will also likely have a number of unintended 
consequences. Once again, under the current system, device 
manufacturers go to considerable expense to obtain premarket 
approval, in part because they know that the financial risks of 
litigation are greatly reduced once the process is completed.
    However, if this legislation is enacted, and manufacturers 
are required to ensure that they have approval of the FDA as 
well as that of any 12 random people in any one of the States. 
The risks of marketing a device will greatly increase and the 
cost of these devices will go even higher. As a result, 
innovation will be stifled and fewer and fewer devices will be 
brought to the marketplace.
    Additionally, we will inevitably see a rise in the overall 
cost for devices as a means to offset the cost to more 
frivolous lawsuits. As someone who tried these suits in the 
past, in my early legal career, or service, I have to say that 
a high percentage of the lawsuits were brought to get defense 
costs. They were frivolous suits. They have been running up the 
cost of healthcare in our society, beyond belief. And frankly, 
when there are legitimate lawsuits, there ought to be ways of 
being able to arrive at just compensation for those who have 
been injured. But, most of them are not. And, since the cost of 
defense--I generally think of them as between $50,000 and 
$200,000--you know, it's, many times, in the interest of the 
people to just pay the cost of defense rather than to defend 
the cases and take a chance with a runaway jury.
    Now, this is not only a detriment to healthcare reform, 
but, more specifically, it undermines the primary healthcare 
reform goal of controlling the growth curve. Not only will this 
adversely affect an industry that employs millions of people 
during a time of economic crisis, it would also harm patients, 
as they will not benefit from the ingenuity and continuing 
advancement in device technology that we currently are 
benefiting from, the vast majority are benefiting from.
    That, in my opinion, will be the most devastating effect of 
this legislation. Indeed, we have one of the most, if not the 
most, innovative and vibrant medical device industries in the 
world, that provides life-saving solutions to millions of 
Americans and people all around the world every year. At a time 
when our unemployment is rapidly headed toward double digits, 
it would be a mistake for us to take some of the steps that are 
currently being discussed, which include--on top of this 
legislation--taking billions out of the productive sector that 
employs thousands of Americans to produce life-saving 
treatments, to pay for an ill-advised massive government 
expansion and control of our healthcare system.
    Now, making this proposition even worse is the fact that 
it's unnecessary. We all want to ensure that those who have 
been truly victimized by the negligence of another party are 
able to receive adequate compensation for their injuries. 
However, the current system, including the statutory 
preemption, does not prevent plaintiffs who have legitimate 
claims from being compensated.
    Under the MDA, device manufacturers can only benefit from 
the protections of preemption if they have followed the system 
to the letter. If they withhold or falsify information in their 
disclosures to the FDA, they will be charged with defrauding 
the Federal Government. Similarly, if a single device is not 
built exactly to the FDA's approved specifications, or if it 
doesn't include the FDA-approved labels, the manufacturer will 
be liable for damages. In addition, if a device is improperly 
implanted or used, the MDA will not protect a doctor from being 
sued for malpractice.
    Put simply, when a manufacturer is legitimately at fault, 
they will be liable under current law, but when they are not at 
fault, the MDA provides a narrowly crafted safe haven from 
costly litigation. As I've stated, this exceptionally narrow 
exemption has great benefits.
    Indeed, the MDA has allowed for unparalleled advancement in 
medical device technology, due in no small part to the fact 
that the rules for safety and liability can't be rewritten in 
50 different separate jurisdictions. If enacted, the 
legislation we're discussing today would remove this protection 
and, as a result, I believe it is the patients who are going to 
suffer.
    I look forward to hearing the testimony from our panel 
today, and I hope that during this discussion we can get to the 
bottom of some of these issues. In particular, I'd like to hear 
some explanation as to why we should empower laymen on State 
juries to overrule the studies, analysis, and findings of our 
FDA experts. In addition, I hope we can debate these issues, 
looking toward the future, and the effects this legislation 
will have on the advancement of medical technology, the 
increased cost to our already out-of-control healthcare 
spending, and, of course, the lives of those who would benefit 
from such technology.
    Let me just say that we're happy to have all of you here 
today. Each of you has important testimony to give to us. We're 
grateful you'd take time to be here.
    I particularly want to mention Mr. Hutt, who is, in my 
opinion, the dean of all FDA lawyers, who really understands 
this business as well if not better than anybody in America 
today. Peter, we're very happy to have you here, and we 
appreciate you taking time, from what we know is a busy 
schedule, to come and help us to work through this and 
understand this better. But, I've known you for almost my 33 
years in the U.S. Senate. You're a totally honest and decent 
man, but you also have written textbooks and been literally the 
dean for all of us in trying to understand all the intricacies 
of the FDA.
    I particularly appreciate my friend up here, Senator 
Harkin. He and I have worked very closely together, not only on 
medical devices--I've worked very closely with the chairman, 
Senator Kennedy--but we've worked on all kinds of other things, 
including the Americans With Disabilities Act. We managed that 
bill on the floor, the two of us, and I remember when we walked 
out and saw all those folks who were just praying that we'd get 
that bill through, we both broke down in tears, as did all of 
them.
    So, I want to thank Senator Harkin for chairing this 
hearing in the absence of our esteemed chairman of the 
committee. And I, again, want to thank all of our witnesses for 
appearing and being with us today.
    Thanks, Mr. Chairman.
    [The prepared statement of Senator Hatch follows:]

                  Prepared Statement of Senator Hatch

    Mr. Chairman, I want to start off by discussing the context 
in which we are holding today's hearing. As everyone in this 
room knows, Congress is in the middle of debating and drafting 
legislation aimed at overhauling our Nation's health care 
system. Obviously, we are somewhat divided over what is the 
best approach in this effort, but I think we all want to see 
something done to reduce health care costs in this country.
    In the midst of this debate, the majority on this committee 
appear anxious to move forward with Senator Kennedy's Medical 
Device Safety Act, which is what brings us here today. Though I 
haven't heard it said explicitly, I can't help but conclude 
that it is the majority's intention to move this legislation as 
part of a broader health care reform effort. I hope I'm wrong 
on this count because, quite frankly, I don't believe this 
legislation will contribute at all to our efforts to make 
health care more affordable. Indeed, it seems that there is 
another agenda being advanced here.
    The recurring themes in the current health care debate have 
been ``change'' and ``sacrifice.'' According to the proponents 
of the President's health care plan, doctors and hospitals will 
have to change the way they do business. Small businesses will 
have to sacrifice in order to comply with the proposed employer 
mandates. Many of them will also have to sacrifice 
profitability in order to pay the higher taxes that will most 
certainly come with a broad government-run health care program. 
Seniors are going to be asked to give up benefits in order to 
meet the demands of bureaucrats who believe their treatment is 
less than cost-effective. The list of parties who will be asked 
to change their ways or sacrifice for the greater good goes on 
and on.
    However, from what I've seen, there is a notable exception 
from these expectations. Indeed, there is one group that, if 
anything, will benefit more than any others if the Majority 
continues its present course. I'm speaking, of course, about 
personal injury and malpractice lawyers, who, with an 
apparently friendly Administration finally in office, have been 
lobbying Congress and the White House harder than ever. And, 
even at a time when so many groups are being told that they'll 
have to deal with increased burdens to pay for and administer a 
Federal health care plan, it appears that the Majority intends 
personal injury lawyers to go unscathed.
    I'm sure we're all aware of the costs malpractice 
litigation imposes on our health care system, whether it's in 
the form of needless tests and procedures performed solely to 
prevent a future lawsuit or increasingly high malpractice 
insurance premiums charged to doctors and hospitals that are 
subsequently passed down to patients. However, as we've been 
involved in the health care debate since the start of the 111th 
Congress, any attempt to inject a measure of reasonableness or 
predictability into our tort system has been immediately 
rebuffed by my colleagues on the other side of the aisle.
    Worse still, in this hearing today, the Majority seems 
poised, not only to protect the trial lawyers from having to 
make the same sacrifices as those in other industries, but to 
give them even more of what they've been asking for. It's no 
secret that the largest association of trial lawyers has 
declared the elimination of regulatory preemption its top 
legislative priority for this year. And, with this legislation, 
they'll be well on their way.
    This would, of course, appear to be reasonable if there was 
some sort of health-related justification for this approach. 
However, if one takes a closer look, it seems as though the 
opposite is true.
    As we know, the Medical Device Amendments of 1976 (MDA) 
established a rigorous system of Federal oversight of medical 
devices. Under this system, devices carrying the greatest 
health risks are subject to premarket approval by the FDA. 
During this process, FDA officials spend a tremendous amount of 
labor-intensive hours reviewing a single device, consulting 
outside experts and analyzing the safety and effectiveness 
profile associated with the use of the device. I'm sure our 
panel will discuss this process in more detail, so I'll just 
say that the FDA's premarket approval process for medical 
devices is extremely rigorous, very costly to the 
manufacturers, and, as history has shown, exceptionally 
efficient.
    In addition to requiring premarket approval, the MDA also 
requires those who manufacture and market the applicable 
devices to report to the FDA on the implementation and use of 
all approved devices. These reports include any new and 
relevant clinical investigations and scientific studies of 
which the manufacturer knows or reasonably should know. Device 
manufacturers must also report to the FDA any incidents, 
malfunctions, or adverse events that may have contributed to a 
serious injury. The FDA has the authority to revoke its 
approval and/or order a recall if it determines a device is 
unsafe under the conditions of its approval and labeling.
    In addition to these rigorous approval and oversight 
requirements, the MDA included an explicit preemption provision 
prohibiting States from establishing or continuing ``any 
requirement'' which ``is different from, or in addition to'' 
any Federal requirement applicable to the device or which 
``relates to the safety or effectiveness of the device.'' This 
provision was common sense. Given the rigorous and costly 
nature of the FDA approval process, it was in the best interest 
of all stakeholders--including patients and consumers--that the 
States be prevented from supplanting this system with their own 
regimes.
    As we're all aware, in last year's Riegel v. Medtronic 
decision, the Supreme Court held that this explicit preemption 
provision also applied to tort claims filed pursuant to State 
common law. This was not a surprise move by the Court. It was 
an 8-1 decision that affirmed the position taken by an 
overwhelming majority of the circuit courts. Yet, the trial 
lawyers and their allies in Congress have painted this decision 
as an unexpected change in the law in order to advance their 
preexisting agenda to weaken Federal preemption. The result of 
this effort is the Medical Device Safety Act.
    The legislation we're discussing today would alter the 
MDA's preemption provision to state that it does not apply to 
actions for liability under State law. My opposition to this 
approach stems from many factors. First, I do not believe that 
randomly-selected jurors have the necessary scientific and 
clinical knowledge to perform the same level of analysis and 
review as the experts at the FDA. Yet, in essence, this 
legislation would supplant the findings of the FDA with those 
of juries in State courts. This is not only bad policy from the 
perspective of device safety, it will also likely have a number 
of unintended consequences.
    Once again, under the current system, device manufacturers 
go to considerable expense to obtain premarket approval, in 
part, because they know that the financial risks of litigation 
are greatly reduced once the process is completed. However, if 
this legislation is enacted and manufacturers are required to 
ensure that they have approval of the FDA as well as that of 
any 12 random people in any one of the States, the risks of 
marketing a device will greatly increase. As a result, 
innovation will be stifled and fewer and fewer devices will be 
brought to the market. Additionally, we will inevitably see a 
rise in the overall cost for devices as a means to offset the 
cost to more frivolous lawsuits. This is not only a detriment 
to health care reform, but more specifically it undermines the 
primary health care reform goal of controlling the growth 
curve. Not only will this adversely affect an industry that 
employs millions of people during a time of economic crisis, it 
will also harm patients as they will not benefit from the 
ingenuity and continuing advancement in device technology. 
That, in my opinion, will be the most devastating effect of 
this legislation.
    Indeed, we have one of the most, if not the most, 
innovative and vibrant medical device industries in the world 
that provides life-saving solutions to millions of Americans 
and people all around the world every year. At a time when our 
unemployment is rapidly headed towards double digits, it would 
be a mistake for us to take some of the steps that are 
currently being discussed, which include, on top of this 
legislation, taking billions out of this productive sector that 
employs thousands of Americans to produce life-saving 
treatments as a pay-for an ill-advised massive government 
expansion and control of our health care system.
    Making this proposition even worse is the fact that it's 
unnecessary. We all want to ensure that those who have been 
truly victimized by the negligence of another party are able to 
receive adequate compensation for their injuries. However, the 
current system, including the statutory preemption, does not 
prevent plaintiffs who have legitimate claims from being 
compensated. Under the MDA, device manufacturers can only 
benefit from the protections of preemption if they follow the 
system to the letter. If they withhold or falsify information 
in their disclosures to the FDA, they will be charged with 
defrauding the Federal Government. Similarly, if a single 
device is not built exactly to the FDA's approved 
specifications or if it doesn't include the FDA-approved 
labels, the manufacturer will be liable for damages. In 
addition, if a device is improperly implanted or used, the MDA 
will not protect a doctor from being sued for malpractice. Put 
simply, when a manufacturer is legitimately at fault, they will 
be liable under current law. But, when they are not at fault, 
the MDA provides a narrowly-crafted safe haven from costly 
litigation.
    As I've stated, this exceptionally narrow exemption has 
great benefits. Indeed, the MDA has allowed for unparalleled 
advancement in medical device technology, due in no small part 
to the fact that the rules for safety and liability can't be 
rewritten in 50 separate jurisdictions. If enacted, the 
legislation we're discussing today would remove this protection 
and, as a result, I believe it is the patients who will suffer.
    I look forward to hearing the testimony from our panel 
today. I hope that, during this discussion, we can get to the 
bottom of some of these issues. In particular, I'd like to hear 
some explanation as to why we should empower lay-men on State 
juries to overrule the studies, analyses, and findings of our 
FDA experts. In addition, I hope we can debate these issues 
looking toward the future and the effects this legislation will 
have on the advancement of medical technology, the increased 
cost to our already out-of-control health care spending, and 
the lives of those who would benefit from such technology.
    Once again, I want to thank Senator Harkin for chairing 
this hearing in the absence of the esteemed chairman of the 
committee. And, I want to thank our witnesses for appearing 
here today.

    Senator Harkin. I thank you very much, Senator Hatch.
    I'm told we have a couple of votes coming up very soon, so 
what we'll try to do is go down the panel. If you would just 
take maybe 5 minutes to summarize, then we will break to go 
vote, afterwards we will come back for questions and finish up 
the panel. I just don't know exactly how soon those votes are 
going to be called. Maybe right now. No, not really.
    Senator Hatch. That's good.
    [Laughter.]
    Senator Harkin. I also want to note for the record that we 
have a new member of our committee with us today. This is his 
first hearing, our distinguished Senator from the State of 
Minnesota. And we welcome you to the committee.
    Senator Franken. Thank you, Mr. Chairman.
    Senator Harkin. I just want to say that I started in that 
seat, right down there, I remember----
    [Laughter.]
    Senator Harkin [continuing]. Back in the last century.
    [Laughter.]
    Senator Hatch. The way he used to beat me up on television, 
I'm very happy to see him way over there.
    [Laughter.]
    Senator Franken. Well, it's great to serve with both of 
you----
    Senator Harkin. We welcome you.
    Senator Hatch. We welcome you.
    Senator Franken [continuing]. Mr. Chairman. And you, too, 
Senator Burr.
    [The prepared statement of Senator Franken follows:]

                 Prepared Statement of Senator Franken

    Thank you, Mr. Chairman. It's an honor to be here as a new 
member of the HELP Committee. As I've mentioned before, this 
committee assignment was a top request of mine. I have to 
commend my colleagues for their excellent work so far on health 
reform. It's humbling to be joining the first committee to 
refer a national health reform bill out of a Senate committee 
in more than 15 years and most importantly, that bill--the 
Affordable Health Choices Act--is a first-rate bill that would 
bring stable, affordable health insurance coverage to millions 
of Americans.
    Since coming to the Senate, I've had the opportunity to 
hold up Minnesota as an example for the rest of the country in 
many ways. Just a few examples are the Mayo Clinic; the low-
cost, high-quality health care is available across our State; 
and Minnesota's requirement that health plans be not-for-
profit. As the home of St. Jude, Boston Scientific, and 
Medtronic, Minnesota has also been a leader in the medical 
device industry. This industry has brought thousands of jobs to 
Minnesota, and life-sustaining technology to millions of people 
throughout the United States and the world.
    Such technology and its ability to save lives is the 
Implantable Cardioverter Defibrillator, or ICD. Patients with 
fibrillation who don't have access to an ICD have a 95 percent 
chance of dying quickly. But with an ICD, chances of survival 
flip on their head, and 98 percent are able to live, long 
healthy lives. I don't think anyone questions that advances in 
medical device technology have improved the quality of life for 
Americans. However, as with all medical procedures, there are 
risks involved.
    As others have mentioned today, we know that medical 
devices are distinct from drugs. These complex, finely 
engineered products must be designed to work in the body for 
many years. We know from families like the Bairds, the Meyers, 
and Steven Baker, who are here today with us from Minnesota, 
that when these devices fail, the impact on individual patients 
and their families is devastating. The question that we must 
grapple with today is how to create public policy that puts 
patients' health first by protecting them from unnecessary 
harm, while still allowing patients to benefit from new 
technologies.
    The question of medical device preemption is incredibly 
complex and requires careful consideration by all sides. I 
appreciate the opportunity to hear from the witnesses assembled 
today, and I hope to learn from them about the steps Congress 
can take to help Americans be safer and healthier.
    There are several steps that I believe may help strike a 
balance between fostering the medical benefits of devices while 
protecting patients from unnecessary harm:

     First, we need to promptly identify and disclose 
problems when they arise. In the case of Medtronic's Sprint 
Fidelis defibrillator, if the problem had been made public 
earlier, the harm to patients may have been greatly reduced. It 
seems to me that we need more transparency from all parties to 
ensure that prompt reporting of potential problems. I look 
forward to hearing from the witnesses how we can do a better 
job providing accurate, timely information to patients and 
providers.
     Second, we need to help both patients and 
providers make educated decisions about healthcare decisions 
based on a balanced view of risk and benefit. Implantable 
medical devices are amazingly complex and are built to interact 
with the incredibly complex human body. I'm interested to hear 
the witnesses' recommendations on how we can help all parties 
make realistic, informed health care decisions about the use of 
these medical devices.

    This hearing will begin to shed some light on these tricky 
issues, and when combined with the Medical Device Safety Act 
and the sincere participation of medical device companies in 
the debate, I'm confident we will make progress on this issue. 
I am also especially heartened that FDA Commissioner Hamburg 
has made medical device safety an early priority for the 
agency.
    The guiding principle in all healthcare decisions should 
be: ``What is best for the patient?'' With medical devices, 
patients have much to gain. But at the same time, they also 
take on the small, but real risk of serious health effects.
    These steps toward patient safety can take place while 
still allowing companies that engineer and manufacture devices 
to continue to innovate. Thank you Mr. Chairman. I appreciate 
the opportunity to participate in the discussion on this 
important issue.
    Senator Harkin. Thank you.
    First--we'll start from the left then go to the right, over 
this way. First, we'll start with Dr. Maisel. He's the founder 
and director of the Medical Device Safety Institute at the Beth 
Israel Deaconess Medical Center, assistant professor of 
medicine at Harvard Medical School. He has an active cardiology 
practice and also directs the pacemaker and defibrillator 
service at Beth Israel Deaconess Medical Center. He received 
his M.D. from Cornell University, his M.Ph. from Harvard School 
of Public Health, completed his internal medicine and 
cardiovascular training at Brigham and Women's Hospital.
    Dr. Maisel has served as a consultant to the FDA's Center 
for Devices and Radiological Health since 2003 and is a former 
chairman of the FDA's Circulatory System Medical Device 
Advisory Panel.
    Dr. Maisel, welcome. As for all of the witnesses, your 
statements will be made a part of the record in their entirety, 
and if you could sum it up in 5 to 7 minutes, I'd be most 
appreciative.
    Dr. Maisel.

STATEMENT OF WILLIAM H. MAISEL, M.D., M.P.H., DIRECTOR, MEDICAL 
DEVICE SAFETY INSTITUTE, BETH ISRAEL, DEACONESS MEDICAL CENTER, 
               HARVARD MEDICAL SCHOOL, BOSTON, MA

    Dr. Maisel. Thank you, Mr. Chairman, committee members, 
good afternoon. Thank you very much for the opportunity today 
to speak about the importance of the Medical Device Safety Act 
of 2009. My name is Dr. William Maisel. I am a practicing 
cardiologist at Beth Israel Deaconess Medical Center, and 
assistant professor of medicine at Harvard Medical School in 
Boston, and I direct the Medical Device Safety Institute, an 
industry-independent, nonprofit organization dedicated to 
improving the safety of medical devices.
    I have served as a consultant to the FDA's Center for 
Devices and Radiological Health since 2003, and I have 
previously chaired the FDA's Post Market and Heart Device 
Advisory Panels.
    I hope that by the conclusion of my brief remarks today, 
you will appreciate that FDA marketing clearance or approval of 
a medical device does not guarantee its safety. In particular, 
manufacturers' responsibilities for product safety extend well 
beyond initial FDA approval. The U.S. Supreme Court's Riegel 
decision eliminates an important consumer safeguard--the threat 
of manufacturer liability--and will lead to less-safe medical 
devices and an increased number of patient injuries.
    We are very fortunate to have the preeminent medical 
regulatory system in the world. The U.S. Food and Drug 
Administration regulates more than 100,000 different medical 
devices manufactured by more than 15,000 companies. They 
receive several thousand new and supplemental device 
applications annually, and they are mandated by Congress to 
complete their premarket evaluations in a timely fashion.
    Thankfully, there are many superb FDA engineers, 
physicians, scientists, and public servants who work tirelessly 
to try to ensure that only safe and effective medical devices 
reach the American public. Unfortunately, it is not uncommon 
for unanswered questions regarding device safety and 
effectiveness to remain, at the time of FDA approval. This 
creates the potential for a large number of patients to be 
rapidly exposed to a newly approved product in the absence of 
long-term follow-up data. For example, close to 268,000 
patients had been implanted with the Medtronic Sprint Fidelis 
implantable defibrillator lead before it was recalled in 
October 2007, and we'll hear more on that later, from Mr. 
Mulvihill.
    It was then determined that the wire was prone to fracture, 
and a fracture of the lead, which connects the implantable 
defibrillator to the heart, may result in serious health 
consequences, including painful electric shocks or death. The 
Medtronic lead was approved on the basis of no human clinical 
data. Though Medtronic began receiving reports of lead 
fractures within months of initial U.S. market release, they 
did not recall the lead until more than 3 years later. An FDA 
inspection report, issued after the recall, cited Medtronic 
for, ``objectionable conditions,'' noting that they failed to 
implement appropriate corrective and preventive action 
procedures related to the company's investigation of the 
product anomaly. In addition, when the FDA inspection team 
requested certain documents, according to the FDA inspection 
report, Medtronic would not let the FDA team view them.
    The delay in issuing a product recall, the FDA citation, 
and the failure to provide FDA with the requested documents did 
nothing to eliminate Medtronic's protection under the 
preemption doctrine. Indeed, Medtronic claimed product 
liability immunity, citing the U.S. Supreme Court's Riegel 
decision, and the U.S. District Court agreed.
    The FDA annually receives reports of more than 200,000 
device-related injuries and malfunctions, and more than 2,000 
device-
related deaths. It's challenging for the agency to identify 
patterns of device malfunction among the deluge of adverse-
events reports. The vast majority of recalls are initiated by 
the manufacturer, but manufacturers have an inherent financial 
conflict of interest, often measured in billions of dollars.
    In numerous cases, manufacturers have knowingly sold 
potentially defective devices without public disclosure. During 
fiscal year 2006 alone, 651 recall actions were initiated 
involving 1,550 products, again reminding us that FDA product 
approval does not ensure device reliability or performance.
    It is clear that medical device manufacturers have 
responsibilities that extend far beyond FDA approval and that 
many companies have failed to meet their obligations, yet the 
U.S. Supreme Court ruled, in their Riegel decision, that 
manufacturers could not be sued under State law by patients 
harmed by product defects from FDA-approved medical devices. As 
a result, consumers are unable to seek compensation from 
manufacturers for their injuries, lost wages, or health 
expenses. More importantly, a vital consumer safeguard--the 
threat of manufacturer liability--has been eliminated. 
Implanted medical devices have enriched and extended the lives 
of countless people, but device malfunctions have become modern 
diseases that will continue to occur.
    Manufacturers have important responsibilities for product 
safety that extend well beyond FDA approval. The idea that 
manufacturer liability for a medical device should end at FDA 
approval is a dangerous policy. Additional consumer 
protections, as offered by the Medical Device Safety Act of 
2009, are essential to minimize adverse health consequences and 
to improve the safety of medical devices for the millions of 
patients who enjoy their benefits.
    Thank you.
    [The prepared statement of Dr. Maisel follows:]
         Prepared Statement of William H. Maisel, M.D., M.P.H.
                              introduction
    Thank you for the opportunity to speak today about the importance 
of the Medical Device Safety Act of 2009. My name is Dr. William 
Maisel. I am a practicing cardiologist at Beth Israel Deaconess Medical 
Center and Assistant Professor of Medicine at Harvard Medical School in 
Boston. I am also Founder and Director of the Medical Device Safety 
Institute (www.medicaldevicesafety.org), an industry-independent, non-
profit organization dedicated to improving the safety of medical 
devices. I have served as a consultant to the FDA's Center for Devices 
and Radiological Health since 2003 and I have previously chaired the 
FDA's Post Market and Heart Device Advisory Panels.
    I hope that by the conclusion of my brief remarks today you will 
appreciate that FDA marketing clearance or approval of a medical device 
does not guarantee its safety. In particular, manufacturers' 
responsibilities for product safety extend well beyond initial FDA 
approval. The U.S. Supreme Court ruled in their February 2008 decision, 
Riegel v. Medtronic, that manufacturers could not be sued under State 
law by patients harmed by product defects from FDA-approved medical 
devices.\1\ Because their lawsuits are ``preempted,'' consumers are 
unable to seek compensation from manufacturers for their injuries, lost 
wages, or health expenses. Most importantly, the Riegel  decision 
eliminates an important consumer safeguard--the threat of manufacturer 
liability--and will lead to less safe medical devices and an increased 
number of patient injuries. The Medical Device Safety Act of 2009 will 
restore the consumer safeguards that are necessary to ensure the safety 
of medical devices for the millions of patients who enjoy their 
benefits.
---------------------------------------------------------------------------
    \1\ Riegel v. Medtronic, 552 U.S. 2 (2008).
---------------------------------------------------------------------------
    We are fortunate to have the preeminent medical regulatory system 
in the world. The U.S. Food and Drug Administration regulates more than 
100,000 different medical devices manufactured by more than 15,000 
companies.\2\ They receive several thousand new and supplemental device 
applications annually and they are mandated by Congress to complete 
their premarket evaluations in a timely fashion.\3\ Thankfully, there 
are many superb FDA engineers, physicians, scientists, and public 
servants who work tirelessly to try to ensure that only safe and 
effective medical devices reach the American public.
---------------------------------------------------------------------------
    \2\ Maisel WH. Medical device regulation: An Introduction for the 
practicing physician. Ann Intern Med 2004; 140: 296-302.
    \3\ U.S. Department of Health and Human Services. Food and Drug 
Administration. Center for Devices and Radiological Health. Office of 
Device Evaluation: Annual Report--Fiscal Year 2006 and Fiscal Year 
2007. Accessed July 28, 2009 at: http://www.fda.gov/downloads/AboutFDA/
CentersOffices/CDRH/CDRHReports/ucm127516.pdf.
---------------------------------------------------------------------------
                      fda pre-approval evaluation
    To gain marketing approval from the FDA for a medical device, a 
manufacturer must demonstrate reasonable assurance of safety and 
effectiveness. During the pre-approval evaluation, several factors may 
limit the ability of the FDA to identify and predict which products 
will perform safely after approval. Product evaluation may include 
computer simulations, engineering analyses, non-clinical laboratory 
testing, animal testing, and human clinical studies. Although some 
products undergo testing in humans before FDA approval, it is not a 
requirement.
    The FDA annually receives hundreds of premarket approval (PMA) and 
PMA supplement applications. Although this represents only 
approximately 61 percent of all FDA-listed devices, PMA devices are 
implanted into tens of millions of patients and include the highest 
risk devices, such as coronary stents and implantable 
defibrillators.\4\
---------------------------------------------------------------------------
    \4\ Government Accountability Office. Medical Devices: FDA Should 
Take Steps to Ensure That High-Risk Device Types Are Approved through 
the Most Stringent Premarket Review Process. January 2009. Accessed 
July 28, 2009 at: http://www.gao.gov/new.items/d09190.pdf.
---------------------------------------------------------------------------
    Unfortunately, it is not uncommon for unanswered questions 
regarding device safety and effectiveness to remain at the time of FDA 
approval. This creates the potential for a large number of patients to 
be rapidly exposed to a newly approved product in the absence of long-
term follow-up data. For example, close to 268,000 patients had been 
implanted with the Medtronic Sprint Fidelis implantable defibrillator 
lead before it was recalled in October 2007 after it was determined 
that the wire was prone to fracture.\5\ A fracture of the lead, which 
connects the implantable defibrillator to the heart, may result in 
serious health consequences, including painful electrical shocks or 
death. The Medtronic lead was approved on the basis of no human 
clinical data.
---------------------------------------------------------------------------
    \5\ Maisel WH. Semper Fidelis--Consumer Protection for Patients 
with Implanted Medical Devices. N Engl J Med 2008; 358: 985-987.
---------------------------------------------------------------------------
    Mr. Sidney Engler, a patient of mine, unfortunately received this 
lead when he had an implantable defibrillator placed in February 2006. 
Mr. Engler is a decorated WWII veteran, having served in Europe from 
1943 to 1945. On the night of August 14, 2008 while preparing to retire 
for the evening, the simple act of removing his shirt over his head 
caused his defective defibrillator lead to fracture. Mr. Engler 
suffered a cardiac arrest in front of his wife. He required CPR and 
received numerous unnecessary painful shocks from his defibrillator. 
Fortunately, due to the prompt response of his local EMTs, Sidney 
survived. Despite a prolonged hospital stay and months of 
rehabilitation, he has still not fully recovered.
    Although Medtronic began receiving reports of lead fractures within 
months of initial U.S. market release, they did not recall the lead 
until more than 3 years later. An FDA inspection report, issued after 
the recall, cited Medtronic for ``objectionable conditions'' for 
failing to implement appropriate corrective and preventive action 
procedures related to the company's investigation of the product 
anomaly.\6\ In addition, when the FDA inspection team requested certain 
documents, FDA was told by Medtronic that ``they were not able to . . . 
view them.''\6\
---------------------------------------------------------------------------
    \6\ U.S. Department of Health and Human Services. Food and Drug 
Administration Establishment Inspection Report FEI 2182208 Medtronic, 
Inc. Cardiac Rhythm Disease Management, 12/21/07. Accessed on July 28, 
2009 at: http://www.fda.gov/downloads/AboutFDA/CentersOffices/ORA/
UCM133024.pdf.
---------------------------------------------------------------------------
    The delay in issuing a product recall, the FDA citation, and the 
failure to provide FDA with the requested documents did nothing to 
eliminate Medtronic's protection under the preemption doctrine. Indeed, 
Medtronic claimed product liability immunity citing the U.S. Supreme 
Court's Riegel decision and the U.S. District Court agreed.\7\
---------------------------------------------------------------------------
    \7\ In re: Medtronic, Inc. Sprint Fidelis Leads Product Liability 
Litigation, 592 F.Supp.2d 1147 (D. Minn., 2009).
---------------------------------------------------------------------------
                   fda mandated post-approval studies
    During pre-market device evaluation, several factors may limit the 
ability of the FDA to identify and predict which products will perform 
safely after approval. There may be questions that cannot be answered 
in the premarket stage, or an issue may arise after the device is 
marketed. FDA may require manufacturers to perform post-approval 
studies as a ``condition'' of approval to provide on-going evaluation 
of the device's safety, effectiveness, and reliability after initial 
marketing approval. These post-approval studies are most often used to: 
(1) monitor device performance and safety during the transition from 
clinical trial to real-world use, (2) assess the long term safety, 
effectiveness, and reliability of the device, and (3) look for 
infrequent but important adverse events. These studies may also be 
initiated to evaluate an emerging public health concern in response to 
reported adverse events.
    Despite the obvious importance of these studies in assessing device 
safety, the FDA and manufacturers have struggled to handle this 
responsibility. In 2005, the FDA reported that they ``couldn't find'' 
22 percent of the required post-market medical device studies for the 
years 1998-2000 and acknowledged that some of the studies were never 
started.\8\ And while efforts have been made to better track these 
required studies, a visit to the FDA's device post-approval study Web 
site demonstrates that more than one-third of manufacturers with on-
going post-approval study responsibilities currently have an overdue 
report.\9\ In 2005, Dr. Susan Gardner, Director of the FDA's Center for 
Devices and Radiological Health Office of Surveillance and Biometrics, 
spoke about the medical device post-approval studies observing that, 
``it looks like we have a fairly poor track record in getting these 
studies done.'' \8\
---------------------------------------------------------------------------
    \8\ U.S. Food and Drug Administration, Center for Devices and 
Radiological Health Medical Devices Advisory Committee Circulatory 
Systems Devices Panel. April 22, 2005. Accessed July 28, 2009 at: 
http://www.fda.gov/ohrms/dockets/ac/05/transcripts/2005-4108t1.htm.
    \9\ U.S. Food and Drug Administration. Post Approval Studies. 
Accessed July 28, 2009 at: http://www.accessdata.fda.gov/scripts/cdrh/
cfdocs/cfPMA/pma_pas.cfm.
---------------------------------------------------------------------------
                       adverse events and recalls
    Despite their premarket medical device evaluation, the FDA annually 
receives reports of more than 200,000 device-related injuries and 
malfunctions, and more than 2,000 device-related deaths.\10\ It is 
challenging for the Agency to identify patterns of device malfunction 
among the deluge of adverse event reports. FDA initiatives to better 
integrate the premarket and postmarket workforces, to develop novel 
methods of surveillance, and to improve tracking of required 
manufacturer postmarket studies may help.
---------------------------------------------------------------------------
    \10\ Center for Devices and Radiological Health. CDRH FY 2006 
highlights. Accessed July 28, 2009 at: http://www.fda.gov/downloads/
AboutFDA/CentersOffices/CDRH/CDRHReports/ucm
129258.pdf.
---------------------------------------------------------------------------
    Although manufacturers are required to report medical device-
related adverse events and malfunctions that caused or could cause 
serious injury or death, not all manufacturers reliably report these 
events to the FDA. For example, EndoVascular Technologies, a subsidiary 
of Guidant Corporation, was charged with failing to report more than 
2,600 device malfunctions, 12 deaths, and numerous other complications 
related to use of its Ancure Endograft system for aortic aneurysms. The 
U.S. Attorney noted that ``Because of the company's conduct, thousands 
of patients underwent surgeries without knowing the risks they faced . 
. . '' \11\
---------------------------------------------------------------------------
    \11\ Castellucci L. Guidant subsidiary pleads guilty, settles 
criminal charges related to aortic aneurysm device. Accessed July 28, 
2009 at: http://www.theheart.org/viewArticle.do?simpleName
=347409.
---------------------------------------------------------------------------
    Although the FDA can theoretically order a product recall in 
response to observed adverse events or device malfunctions, the vast 
majority of recalls are voluntarily initiated by the manufacturer. 
Because of the manufacturers' inherent financial conflict of interest, 
the timing and extent of the product recalls are often controversial. 
In numerous cases, manufacturers have knowingly sold potentially 
defective devices without public disclosure.\5\ \12\ During fiscal year 
2006, 651 recall actions were initiated involving 1,550 products--again 
reminding us that FDA product approval does not ensure device 
reliability and performance.\10\
---------------------------------------------------------------------------
    \12\ Maisel WH. Safety issues involving medical devices. 
Implications of recent implantable cardioverter-defibrillator 
malfunctions. JAMA 2005; 294: 955-958.
---------------------------------------------------------------------------
          pre-emption--loss of an important consumer safeguard
    It is clear that medical device manufacturers have responsibilities 
that extend far beyond FDA approval and that many companies have failed 
to meet their obligations. Yet, the U.S. Supreme Court ruled in their 
February 2008 decision, Riegel v. Medtronic, that manufacturers could 
not be sued under State law by patients harmed by product defects from 
FDA-approved medical devices.\1\ Because their lawsuits are 
``preempted,'' consumers are unable to seek compensation from 
manufacturers for their injuries, lost wages, or health expenses. More 
importantly, however, the Riegel  decision eliminates an important 
consumer safeguard--the threat of manufacturer liability--and will lead 
to less safe medical devices and an increased number of patient 
injuries. The idea that manufacturer liability for a medical device 
should end at FDA approval is a dangerous policy. Additional consumer 
protections, as offered by the Medical Device Safety Act of 2009, are 
essential.
                              conclusions
    Implanted medical devices have enriched and extended the lives of 
countless people, but device malfunctions and software glitches have 
become modern ``diseases'' that will continue to occur. Manufacturers 
have important responsibilities for product safety that extend well 
beyond FDA approval and we have witnessed the repeated failure of 
manufacturers to provide the public with timely, critical information 
about device performance, malfunctions, and ``fixes'' enabling 
potentially defective devices to reach unwary consumers. There are 
consumer protections for airline passengers, cable-television 
customers, and cellular-telephone users, but surprisingly few for 
patients who receive life-sustaining medical devices. The Medical 
Device Safety Act of 2009 provides important and necessary safeguards 
for consumers that will minimize adverse health consequences and 
improve the safety of medical devices for the millions of patients who 
enjoy their benefits.

    Senator Harkin. Thank you very much, Dr. Maisel.
    And now we'll turn to Professor Thomas McGarity, who holds 
the Joe R. and Teresa Lozano Long Endowed Chair in 
Administrative Law at the University of Texas School of Law. He 
has taught administrative law, environmental law, and torts at 
Texas Law School since 1980. Professor McGarity received his BA 
in 1971 from Rice University, his JD in 1974 from the 
University of Texas. After a clerkship with the Honorable 
William E. Doyle of the Tenth Circuit Court of Appeals, he 
served as an attorney advisor in the Office of General Counsel 
of the EPA.
    Professor McGarity has written extensively about 
administrative law. In October 2008, he published his most 
recent book, ``The Preemption War: When Federal Bureaucracies 
Trump Local Juries.''
    Professor McGarity, welcome.

 STATEMENT OF PROFESSOR THOMAS O. McGARITY, JOE R. AND TERESA 
LOZANO LONG ENDOWED CHAIR IN ADMINISTRATIVE LAW, UNIVERSITY OF 
                TEXAS SCHOOL OF LAW, AUSTIN, TX

    Mr. McGarity. Thank you very much, Chairman Harkin and 
other members of the committee, for having me here.
    I am very pleased to be here and to share my thoughts on 
this very important bill with you. I am, of course, expressing 
my own views on this matter, not those of the University of 
Texas.
    The U.S. Supreme Court has frequently invoked what it calls 
a ``presumption against preemption'' in areas that are subject 
to traditional State regulation. And this reflects our 
federalist system, where we have a Federal Government but we 
also have 50 State governments.
    Medical devices were not regulated at the Federal level at 
all until 1976, when the Dalkon Shield tragedy motivated 
Congress to enact the MDA of 1976. The purpose of the statute 
was to protect the users of medical devices from future Dalkon 
Shields by ensuring that dangerous devices did not enter the 
marketplace in the first place.
    Now, the Medical Device Amendments did have--and do have--a 
preemption clause in them, and it does use the magic word 
``requirement,'' as the U.S. Supreme Court held in the Riegel 
opinion. Now, that was no doubt added to the statute because 
several States were enacting their own regulatory regimes, in 
the absence of a Federal regime, to fill the void. The statute 
lacked a savings clause for common-law claims, no doubt because 
in 1976 it never occurred to anyone that the word 
``requirement'' would include State common law. But, the U.S. 
Supreme Court, in 1992, in the Cipollone opinion, held that it 
did, for purposes of that statute; and we've seen, in the 
Riegel case, that it now has interpreted the preemption clause 
in the MDA to mean the same thing.
    Now, while the Court's reasoning is open to criticism, the 
point that you made earlier is that Congress is in the position 
to fix this. Congress is the ultimate decisionmaker when it 
comes to preemption.
    And I think, therefore, that taking up S. 540 is a good 
idea, for the reason that it preserves corrective justice for 
those who have been wronged. Corrective justice is a bedrock 
principle of civil society that goes back at least as far as 
Aristotle. The compensation of the common law provides 
corrective justice by requiring manufacturers of defectively 
designed or manufactured products to compensate innocent 
victims.
    Now, tort law also provides an important backstop to the 
regulatory system by sending a message to potential defendants 
to collect the data necessary to evaluate their products and to 
take action to prevent future harm.
    Device manufacturers that conduct the clinical trials, that 
are continually receiving the reports and to collect data from 
all sources, are in a much better position than the doctors out 
in the field, than the patients, certainly, or even than FDA, 
to evaluate the safety of their devices. They are also in a far 
better position to do something about it once problems do 
arise. The manufacturers' incentive to comply with the common-
law duty reinforces, therefore, the protective function of the 
Medical Device Amendments.
    Now, what are the consequences of preemption? Well, on very 
rare occasions, Congress has, in fact, explicitly preempted 
common-law claims. Every time it's done that, that I'm aware 
of, it has provided either a Federal cause of action or some 
compensation regime to provide that important compensation 
function. When a court interprets the word ``requirement'' to 
preempt State common-law claims, there's a void left, there is 
no corrective justice. It also robs the common-law of its 
backstop role to back up the Federal system--the regulatory 
system.
    Now, there are other policy considerations, as well. 
Institutional competence. Yes, FDA has expertise, but it is 
also subject to capture. And FDA approval is still relevant, 
and often determinative--I would say, most often 
determinative--in common-law litigation.
    FDA has traditionally lacked resources. It can be 
manipulated by companies who defraud the agency. It is not the 
case that a party, who alleges that he's been damaged because a 
company's defrauded the agency, is entitled to compensation for 
that. Indeed, the U.S. Supreme Court, in the Buckman case, held 
that that claim is preempted by Federal law. So, whereas the 
Federal Government may pursue the frauds--or fraudulent 
practices--it is not something that a defendant, I mean, a 
plaintiff who has been harmed can seek compensation for.
    We have other functions. Federalism, as already mentioned, 
is an important consideration in our government. And the 
argument that somehow allowing compensation will over deter 
companies just isn't supported by hard, empirical data. I've 
looked in--I can't find good, strong studies saying that, 
``Well, yes, we have fewer devices out there--or, fewer drugs, 
for that matter--because people are able to claim compensation 
when they are damaged.''
    The decision to preempt State common law is uniquely within 
the power of Congress. I commend this committee for taking up 
that question.
    Thank you.
    [The prepared statement of Mr. McGarity follows:]
                Prepared Statement of Thomas O. McGarity
    My name is Tom McGarity. I hold the Joe R. and Teresa Lozano Long 
Endowed Chair in Administrative Law at the University of Texas School 
of Law, where I teach courses in Torts and Environmental Law. I am also 
a member of the Board and immediate past president of the Center for 
Progressive Reform. I have recently published a book entitled The 
Preemption War: When Federal Bureaucracies Trump Local Juries, in which 
I explore in some detail the issues that are before your committee 
today. I am very pleased to be here to testify on the topic of Federal 
preemption of State common law claims and on the ``savings clause'' in 
S. 540 that, as I understand it, is intended to exempt State common law 
claims from the express preemption clause in the Medical Device 
Amendments to the Food, Drug and Cosmetics Act. Please note that I am 
expressing my own views and not necessarily those of the University of 
Texas or the Center for Progressive Reform.
          the medical device amendments and the riegel opinion
    Although the Supreme Court has frequently invoked a ``presumption 
against preemption'' in ``areas of traditional State regulation,'' \1\ 
it has expanded the range of Federal programs that preempt State common 
law during the past 20 years.\2\ This process began with the Court's 
1992 holding, in Cipollone v. Liggett Group, Inc., that the word 
``requirement'' in an express preemption clause could include State 
common law claims.\3\ This much-criticized opinion invited defendants 
to raise the Federal preemption defense in every case in which the 
relevant statute used the word ``requirement'' or similar words that 
could broadly be interpreted to include common law duties.
---------------------------------------------------------------------------
    \1\ Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 449 (2005) 
(quoting New York State Conference of Blue Cross & Blue Shield Plans v. 
Travelers Ins. Co., 514 U.S. 645, 655 (1995)); Hillsborough County v. 
Automated Medical Laboratories, Inc., 471 U.S. 707, 716 (1985).
    \2\ Thomas O. McGarity, The Preemption War, ch. 4 (2008); Robert L. 
Rabin, Federalism and the Tort System, 50 Rutgers L. Rev. 1, 27 (1997).
    \3\ Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992).
---------------------------------------------------------------------------
    Medical devices were not regulated at the Federal level until the 
Dalkon Shield tragedy in the early 1970s motivated Congress to enact 
the 1976 Medical Device Amendments to the Food, Drug and Cosmetics 
Act.\4\ The unambiguous purpose of the statute was to protect patients 
from future Dalkon Shield disasters by ensuring that dangerous devices 
did not enter the marketplace in the first place.\5\ To accomplish this 
purpose, the statute created a comprehensive regulatory regime under 
which medical devices in the most dangerous of three categories may not 
be put on the market until the manufacturer has demonstrated to FDA 
that there is a ``reasonable assurance'' that they were both safe and 
effective.\6\
---------------------------------------------------------------------------
    \4\ Medtronic, Inc. v. Lohr, 518 U.S. 470, 476 (1996); Richard B. 
Sobol, Bending the Law: The Story of the Dalkon Shield Bankruptcy 
(1991).
    \5\ Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).
    \6\ 21 U.S.C. 360e(d)(2); Richard C. Ausness, ``After You, My Dear 
Alphonse!'': Should the Courts Defer to the FDA's New Interpretation of 
360k(A) of the Medical Device Amendments, 80 Tulane L. Rev. 727 
(2006), at 731-33.
---------------------------------------------------------------------------
    The Medical Device Amendments contain an express preemption clause 
that uses the magic word ``requirement.'' \7\ As a historical matter, 
the express preemption clause was added to the statute because several 
States, including California, were considering or enacting legislation 
to fill the void left by the absence of a Federal regulatory regime. 
The statute lacks a ``savings clause'' exempting State common law 
claims from the ambit of the preemption clause. This is no doubt 
attributable to the fact that prior to the Cipollone  case, few if any 
lawyers imagined that the word ``requirement'' included State common 
law claims.
---------------------------------------------------------------------------
    \7\ 21 U.S.C. 360k(a).
---------------------------------------------------------------------------
    In the 1996 case of Medtronic, Inc. v. Lohr,\8\ the Court held that 
the Medical Device Amendments preempted some, but not all common law 
claims directed toward medical devices that FDA had approved using the 
very abbreviated process that the statute provides for devices that are 
``substantially equivalent'' to devices in existence in 1976.
---------------------------------------------------------------------------
    \8\ Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).
---------------------------------------------------------------------------
    Twelve years later, in Riegel v. Medtronics, Inc.,\9\ the Court 
took up the issue of devices that had undergone the full FDA approval 
process. The Court there held that the word ``requirement'' in the 
statute's express preemption clause encompassed Riegel's common law 
claims. In broad dicta that defendants are relying on in currently 
pending cases, the Court added that ``[a]bsent other indication, 
reference to a State's ``requirements'' includes its common-law 
duties.'' \10\ Noting that during the full approval process ``the FDA 
requires a device . . . to be made with almost no deviations from the 
specifications in its approval application,'' \11\ the Court explained 
that ``State tort law that requires a manufacturer's catheters to be 
safer, but hence less effective, than the model the FDA has approved 
disrupts the Federal scheme no less than State regulatory law to the 
same effect.'' \12\
---------------------------------------------------------------------------
    \9\ Riegel v. Medtronics, Inc. 128 S.Ct. 999 (2008).
    \10\ 128 S.Ct., at 1008.
    \11\ 128 S.Ct., at 1007.
    \12\ 128 S.Ct., at 1008. To the extent that the plaintiff 's claim 
was based on a company's violation of FDA's regulations, however, there 
was no variance between the duty imposed by the Federal Government and 
that imposed by the common law. Therefore, such claims were not 
preempted.
---------------------------------------------------------------------------
    While the court's reasoning is certainly open to criticism, the 
fundamental flaw, in my view, dates back to the Cipollone  opinion. It 
is therefore highly unlikely that the Court will revisit either 
decision in the foreseeable future. I take the position in my book The 
Preemption War that the best way to reverse this trend toward Federal 
agency preemption of State common law claims is for Congress to revisit 
the relevant statutes on a case-by-case basis.\13\ That is exactly what 
S. 540 does, and I commend your committee for taking up this important 
issue.
---------------------------------------------------------------------------
    \13\ Thomas O. McGarity, The Preemption War ch. 10 (2008).
---------------------------------------------------------------------------
   the corrective justice and deterrence functions of the common law
    ``Corrective justice'' is a bedrock principle of civil society that 
dates back at least as far as Aristotle. Broadly stated, corrective 
justice requires that the State correct unjust changes in wealth that 
result from interactions among the members of a polity, usually by way 
of a financial arrangement. The compensation function of the common law 
provides corrective justice by requiring manufacturers of defectively 
designed or manufactured products to compensate innocent persons who 
have been injured by such products. I can think of no better example of 
corrective justice than the principle that the manufacturer of a 
defective medical device must compensate innocent patients who have 
been injured by the defective aspects of that device.
    The accountability afforded by the civil justice system also 
provides a powerful incentive to companies to avoid causing harm in the 
first place.\14\ To the extent that the anticipated compensatory and 
punitive damage awards imposed by the civil justice system are greater 
than the cost of avoiding the harm, a rational company will take 
protective action to prevent causing damage in the future.\15\ In this 
way, tort law provides a valuable backstop to the regulatory system by 
sending a message to potential defendants to collect data on the harm-
producing potential of their products and activities and to take action 
to prevent future harm.\16\ Indeed, litigation may be more effective in 
removing risky products from the market than regulatory controls.\17\
---------------------------------------------------------------------------
    \14\ See Thomas O. McGarity, The Preemption War 32-33 (2008).
    \15\ Dan B. Dobbs, The Law of Torts (2000), at 19-21; Gary T. 
Schwartz, Mixed Theories of Tort Law: Affirming Both Deterrence and 
Corrective Justice, 75 Tex. L. Rev. 1801 (1997), at 1832.
    \16\ See Mary L. Lyndon, Tort Law and Technology, 12 Yale J. Reg. 
137 (1995), at 143; Wendy Wagner, When All Else Fails: Regulating Risk 
Products Through Tort Litigation, 95 Georgetown L. J. 693 (2007), at 
727.
    \17\ Alexandra B. Klass, Pesticides, Children's Health Policy, and 
Common Law Tort Claims, 7 Minnesota J. of Law, Science, & Technology 89 
(2005), at 118.
---------------------------------------------------------------------------
    The deterrence function of State tort law is especially relevant to 
medical devices for two reasons. First, the device manufacturers that 
conduct the clinical trials and continually receive reports on their 
products will generally have access to more information on the risks 
posed by their products than doctors, patients or even FDA. Second, 
device manufacturers are in a far better position than doctors, 
patients or FDA to improve the safety of their products both before and 
after they enter the marketplace. The manufacturers' incentive not to 
violate its common law duty to market non-defective medical devices 
therefore reinforces the protective policies underlying the Medical 
Device Amendments.
                     the consequences of preemption
    Congress only very rarely speaks explicitly to State common law (as 
opposed to State statutes and regulations) in express preemption 
clauses. When it does, it invariably provides an alternative route to 
corrective justice by creating either a separate Federal cause of 
action or an alternative administrative compensation regime.\18\ 
Congress typically creates a national compensation regime because it 
concludes either that the common law of some States inadequately 
advances important public policies or that a national system with 
uniform rules is necessary to ensure the continued availability of 
valuable products and activities. An example of the former is the 
Federal Employees Liability Act, which was enacted in 1908 to replace 
regressive State common law doctrines that shielded railroads from 
liability with a more ``enlightened'' Federal common law cause of 
action for workers of interstate common carriers.\19\ An example of the 
latter is the National Childhood Vaccination Injury Act (NCVI Act) of 
1986, which provides swift compensation for persons injured by 
vaccines, while at the same time ensuring that litigation risks do not 
hamper the country's supply of effective vaccines.\20\
---------------------------------------------------------------------------
    \18\ Timothy D. Lytton, The NRA, The Brady Campaign, & the Politics 
of Gun Litigation, in Timothy D. Lytton, ed., Suing the Gun Industry 
(Univ. of Michigan Press 2005), at 152, 174.
    \19\ 45 U.S.C. 51-60. See Dan B. Dobbs, The Law of Torts (2000), 
at 40, 312; Robert L. Rabin, Federalism and the Tort System, 50 Rutgers 
L. Rev. 1 (1997), at 26.
    \20\ 42 U.S.C. 300aa-11-15; Moss v. Merck & Co., 381 F.3d 501 (5th 
Cir. 2004), at 503. See generally Thomas F. Burke, Lawyers, Lawsuits, 
and Legal Rights (Berkeley, U. California Press 2002), at ch. 4.
---------------------------------------------------------------------------
    When a court interprets an express preemption clause that mentions 
State ``requirements'' and does not include an alternative compensation 
regime to include State common law claims, it deprives victims of their 
right to compensation from the wrongdoers who injured them. There is no 
alternative compensation regime available in these cases to provide 
corrective justice. In the case of uninsured victims, their medical 
expenses are as often as not picked up by the States or the Federal 
Government. Furthermore, a finding that a products liability claim is 
preempted robs the common law of the ``backup'' role that it plays by 
way of providing an incentive to device manufacturers not to market 
defective products.
    For these reasons, I believe that Congress should be very reluctant 
to deprive victims of corrective justice and to deprive Federal 
agencies of the common law's ``backstop'' function behind the veil of 
express preemption clauses, and it should be very quick to correct the 
injustice that results when a court misinterprets an express preemption 
clause using the word ``requirement'' to eliminate victims' rights to 
corrective justice. That is why I believe that a statute like S. 540 
should be on the congressional agenda in the wake of the Riegel 
opinion.
                         policy considerations
    Although much of the law of preemption derives from judicial 
opinions, it is important to recognize at the outset that the 
determination whether a Federal regulatory regime should preempt State 
law is entirely within the discretion of Congress. How Congress 
exercises that discretion is ultimately a policy question that requires 
Congress to balance several important considerations, many of which I 
highlight in chapters 7-9 of The Preemption War. I have already alluded 
to the overarching policy of preserving the capacity of the common law 
to provide corrective justice. I will briefly summarize some other 
considerations below and explain why, in the case of medical devices, 
it is my view that a savings clause like that contained in S. 540 
represents sound public policy.
Conflict Avoidance
    The most powerful policy rationale for preempting any State law is 
the potential for conflict between that law and Federal law. The 
Supreme Court has recognized that conflict comes in two varieties. 
First, two bodies of law may impose conflicting obligations on those 
who are subject to them. Thus, a State law that requires a person to 
take an action that violates a Federal regulation presents a conflict 
that renders compliance with both impossible. Although common law 
injunctive relief could easily bring about such a direct conflict, a 
common law claim for damages would present such a direct and forceful 
conflict only in the difficult-to-imagine case in which a Federal 
regulation prohibited a company from paying damages to an injured 
plaintiff. Nevertheless, it would usually be unfair to force a company 
to pay damages for violating a common law duty that directly conflicts 
with a Federal regulatory requirement.
    Second, the two bodies of law may be at cross purposes, as when 
compliance with State law would present an obstacle to achieving an 
important policy underlying a Federal regulation. In my view, there is 
little risk that allowing victims of defective medical devices to seek 
corrective justice from manufacturers of defective devices will cause a 
conflict with an important Federal policy. To the extent that the 
device fails to comply with Federal requirements, allowing common law 
claims to proceed would simply reinforce the primary purpose of the 
Medical Device Amendments, which is to protect patients from poorly 
designed and manufactured medical devices, by providing an added 
incentive to manufacturers to be careful. There is some risk that 
common law actions could hinder a Federal policy favoring the 
availability of medical technologies if the threat of liability caused 
companies to withdraw FDA-approved devices unnecessarily. The magnitude 
of that risk, however, depends upon the ability of FDA to address 
previously approved devices as new information related to risk and 
efficacy becomes available, a topic that I discuss below.
Institutional Competence
    The primary advantage that regulatory agencies have over State 
common law is the expertise that they can bring to bear on the 
scientific and technical issues. Jurors can become confused or bored by 
complex presentations. On issues that turn on scientific or technical 
evidence, they may be more easily swayed than agency experts by emotion 
or irrelevant policy considerations. Yet the available empirical 
evidence suggests that juries are capable of comprehending complex 
scientific and technical issues quite objectively with the help of 
judge-screened experts.
    Agencies also develop a policymaking expertise that gives them a 
clear advantage over courts in addressing major issues of national 
policy. That form of expertise is, however, less relevant to issues 
related to the risks of individual products that arise in products 
liability litigation regarding medical devices.
    At the same time, agencies are far from omniscient. They are 
notoriously subject to ``capture'' by the very interests that they are 
charged with regulating. FDA is almost entirely dependent on 
information submitted by medical device manufacturers at the initial 
approval stage, and that information is easily manipulated by 
unscrupulous companies and their consultants.\21\ Because the device 
approval process is cloaked in secrecy, agency reviewers do not have 
the benefit of skeptical outsiders from public interest and patient 
advocacy groups. FDA also lacks subpoena power to obtain internal 
company documents that can tell a very different story than the one the 
agency reviewers hear in their meetings with company officials.
---------------------------------------------------------------------------
    \21\ See Marcia Angell, The Truth About Drug Companies (2004); 
Jerome P. Kassirer, On the Take (2005); Thomas O. McGarity & Wendy A. 
Wagner, Bending Science (2008).
---------------------------------------------------------------------------
    Common law courts have institutional advantages over Federal 
agencies that should also be weighed in the balance. Perhaps the 
strongest institutional advantage of common law litigation is its 
ability to force information from company files and tease it out of 
company employees in depositions. Courts are also better adapted than 
agencies to respond rapidly to developments in the real world as new 
information on the hazards of products and activities becomes 
available. Finally, courts are far less subject to capture, 
manipulation and political pressure than Federal agencies.
Institutional Capacity
    Resource-starved Federal agencies like FDA do not have sufficient 
personnel to keep up with ongoing technological developments, and they 
are generally very reluctant to revisit previous decisions in light of 
new information. As a practical matter, the promise that they offer to 
bring both technical and policymaking expertise to bear on issues that 
are also frequently litigated in common law courts may be a hollow one. 
Yet the implicit assumption underlying Federal preemption of common law 
claims is that the Federal regulatory agencies are performing their 
jobs nearly perfectly. Otherwise, the common law still has a role to 
play in providing corrective justice to victims of defective products.
The Common Law Backstop
    As discussed above, the common law provides a valuable ``backstop'' 
role when agencies fail to provide the degree of protection envisioned 
by their authorizing statutes. The threat of common law liability 
provides incentives for regulatees to take protective action when 
evolving practices and technologies create unanticipated gaps in the 
coverage of regulations and permit requirements that are difficult for 
agencies to fill on a short-term basis. It also provides a disincentive 
to engage in artful schemes to avoid the reach of regulatory 
requirements. Finally, by providing a procedural advantage to 
plaintiffs who can show that their harm was caused by violations of 
regulatory requirements, common law litigation can assist agency 
enforcers in their compliance assurance efforts.
Federalism
    The States have historically played the dominant role in protecting 
consumers and other victims of harmful business practices and 
activities. In some important areas, like environmental protection, 
that dominance has been replaced by that of Federal agencies 
administering the landmark legislation of the 1960s and 1970s. In other 
areas, like consumer protection generally, the States remain the 
dominant institutional actors. And State courts have traditionally been 
the dominant institutions for providing corrective justice to American 
citizens. Since ``regulatory wisdom does not reside exclusively in 
Federal agencies,'' the experiments with lawmaking that are constantly 
going on in the 50 States can benefit the Nation as a whole.\22\ 
Indeed, the combined resources of State courts and Federal agencies can 
usually accomplish a great deal more than the efforts of either one 
operating alone.
---------------------------------------------------------------------------
    \22\ Richard J. Pierce, Regulation, Deregulation, Federalism, and 
Administrative Law: Agency Power to Preempt State Regulation, 46 U. 
Pittsburgh L. Rev. 607 (1985), at 656 (regulatory wisdom quote); Nina 
A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737 (2004), at 
767.
---------------------------------------------------------------------------
``Overdeterrence''
    Some scholars have argued that the deterrence function of common 
law in the context of multiple sovereignties can go too far and cause 
manufacturers to over-invest in safety and therefore under-invest in 
the development of useful products.\23\ To the extent that the amount 
invested in safety exceeds the value of the damage caused discounted by 
the probability that damage will in fact occur, the argument goes, this 
``overdeterrence'' is economically inefficient and could delay the 
development of important medical technologies.
---------------------------------------------------------------------------
    \23\ See Richard A. Epstein, Overdose (2006).
---------------------------------------------------------------------------
    Given the strongly protective purpose of the Medical Device 
Amendments of 1976, I think the burden should be on the medical device 
industry to make that case with hard empirical evidence, and not vague 
allusions to a supposed ``device lag.'' Although think tank reports and 
op-ed pages are filled with claims that the American civil justice 
system is depriving citizens of useful technologies, I have seen very 
little hard empirical support for such claims in the context of either 
drugs or medical devices. In my view, the deterrence function of State 
common-law performs outweighs any speculative ``overdeterrence'' that 
might result from the possibility that device manufacturers may be 
called upon to compensate the victims of defective devices.
                              conclusions
    The decision to preempt State law is uniquely within the power of 
Congress, and Congress has a responsibility to speak clearly to the 
issue of State common law when it enacts regulatory statutes that 
preempt State statutes, regulations, and other ``requirements.'' 
Congress has spoken clearly in many important regulatory statutes 
through savings clauses articulating a congressional intent not to 
preempt State common law claims. Your committee has an opportunity to 
speak clearly to this issue in the increasingly important context of 
federally regulated medical devices. I would urge you to take advantage 
of that opportunity.

    Senator Harkin. Thank you Professor McGarity.
    And now we'll turn to Michael Mulvihill, from Bettendorf, 
IA.
    Mr. Mulvihill is a graduate of Iowa State University, the 
foremost university in the entire universe.
    [Laughter.]
    After graduation, he worked as a golf course superintendent 
for 13 years. For the next 28 years, he worked for a turf 
equipment distributor, designing and selling golf course 
irrigation systems. Mr. Mulvihill is a victim of a faulty 
medical device, and will speak to that experience.
    Mr. Mulvihill, welcome. Thank you for being here. Please 
proceed.

    STATEMENT OF MICHAEL MULVIHILL, PATIENT, BETTENDORF, IA

    Mr. Mulvihill. Thank you for having me.
    My name is Mike Mulvihill, I'm 64 years old, and live in 
Bettendorf, IA. I had a Medtronics EnTrust defibrillator 
implanted on March 28, 2006. Arrhythmia was my problem.
    On June 30, 2007, I had a very painful life-changing 
episode. My wife and I were driving to see our son, daughter-
in-law, and grandchildren in Haddonfield, NJ. On that Saturday 
morning, I was driving east of Springfield, Ohio, on I-70, in a 
construction zone, when the device went off. I first thought 
we'd hit some road debris, but could not understand what the 
blue flash was that I'd seen. I tried to navigate the car 
toward the shoulder of the road. The device shocked me again, 
and again. Mary, my wife, was calling 9-1-1. I don't remember 
how many times that device went off, all I recall is the 
excruciating pain and the fear I was feeling.
    The responders showed up and took me to a small hospital in 
London, OH. They rolled me in on a gurney. The device went off 
again. I moved my head. It lifted me up off that gurney and 
then dropped me right back down on it. I remember looking at 
a--what I was assuming, a very experienced nurse. Her eyes were 
really, really wide open with concern. And my wife, because I 
was screaming so bad, she had to go outside, she told me later.
    Well, I talked to Ross--Ross Heart Institute at Ohio State 
put a big magnet on me and transported me into Columbus, to 
that hospital. Checked in at the Ross Heart Institute. I was 
exhausted, very scared, and I hurt.
    Medtronic's rep came into the room and read the device, 
told us it had shocked me 22 times in 53 minutes. He added that 
it was an electrical problem--electrical wire-lead problem, not 
the device. We had several doctors come in later that day and--
came into the room, and one of them told my wife and I how 
lucky we were that I had not wrecked the car, because I had 
been driving.
    The lead replacement surgery was scheduled for Monday, July 
2, in the early afternoon. I was admitted for the 3 days, from 
Saturday until Tuesday, and I was discharged around noon on 
July 3. Mary drove us on to our son's house and the entire way 
back to our house in Bettendorf.
    After this episode, I found that driving on freeways, 
highways, interstates, made me very anxious, made me very tense 
and fearful of the device going off. I was afraid I might wreck 
some other car--hit somebody, kill myself, etc. This anxiety 
had a huge impact on me and my job.
    I've been a golf irrigation specialist for the distributor; 
covered 77 counties in Iowa, 17 in Illinois, and 3 in 
Wisconsin. Well, that's a lot of driving. And I was no longer 
able to properly do my job, due to the anxiety and fear that I 
suffered anytime I drove any distances on highways.
    It also affected my personal life, this inability to drive. 
I had annual fishing trips planned for the fall of 2007, and 
they were both impacted. The first trip was to Deer River, MN. 
One of my fishing buddies drove the whole way up there and 
back, about 1,200 miles, round-trip.
    While in Deer River, I experienced some chest pains, I 
thought, so I went to an emergency room. The doctor concluded I 
was likely suffering from ulcers. Upon returning home, my 
doctor located the ulcers and placed me on some antacid 
medication, etc.
    About a month after that, in October 2007, was the next 
fishing trip. Again, one of the fellows on the trip was kind 
enough to do all the driving, but I was able to stay up there a 
day and a half out of the 9-day trip. The anxiety, nerves, 
whatever you want to call it--fear--got to me. The same fellow 
drove me home, the 380 miles from Hayward, and then went back 
up to finish his vacation.
    It's affected our personal life, too, because Mary and I 
can't take those trips to see the family and friends. It's 
limited Mary's travel, since I worry more when she's not there 
to calm me down.
    After all this worry and tension and anxiety that I was 
feeling, I decided I needed professional help, and I began 
seeing a psychologist, who taught me some relaxation 
techniques. They seemed to help calm me down.
    I also, at that time, decided that the travels and 
pressures of my sales job were too much to handle, so I moved 
my retirement up to January 3, 2008, about a year and a half 
sooner than I'd planned.
    I had several device checks in 2008, and three trips to the 
ER within 6 months of the lead replacement. The majority of 
these visits were from me feeling that something was not right. 
One of my biggest questions at this time is, What effect the 
numerous shocks from the Medtronic device have had on my heart? 
Any unexpected twinge or unusual feeling in the chest area 
makes me tense, and I begin to wonder if the device is working 
properly or whether I need to go to the hospital. It's not a 
fun way to live.
    My hope is that no one else ever has to go through the pain 
and agony that I experienced with a fractured lead, and that 
Medtronic is held responsible for the injuries it has caused 
other patients like me.
    Thank you.
    [The prepared statement of Mr. Mulvihill follows:]
                Prepared Statement of Michael Mulvihill
    My name is Mike Mulvihill. I'm 64 years old and live in Bettendorf, 
IA. I had a Medtronics EnTrust defibrillator implanted on March 28, 
2006 for irregular heart beat and pulse rate.
    I had a life changing episode on Saturday, June 30, 2007. My wife 
Mary and I were driving to see our son, daughter-in-law, and 
grandchildren in Haddonfield, NJ. On Saturday morning I was driving 
east of Springfield, OH on I-70 at about 7:30 a.m. in a construction 
zone when the device went off. I first thought we'd hit some road 
debris but could not understand the blue flash I'd seen. I navigated 
the car toward the shoulder of the road when the device shocked me 
again and I realized what was going on. As I made it to the shoulder of 
the road, Mary was calling 911. I don't remember how many times the 
unit went off--all I recall is the excruciating pain and the fear I was 
feeling.
    The responders took me to a rural hospital in London, OH. As they 
rolled me in on a gurney the device went off again--lifting me off the 
gurney. I remember looking at a nurse whose eyes were really, really 
wide open with concern. My wife had to go outside to escape my loud and 
continuous screaming due to the pain. The hospital transported me to 
Ohio State University-Ross Heart Institute.
    Upon check-in at Ross Heart Institute, a Medtronics rep came into 
the room and read the device. He told us it had shocked me 22 times in 
53 minutes. He added that it was an electrical wire lead problem. One 
of the several doctors who came in the room told my wife and me how 
lucky we were that I had not wrecked the car.
    A lead replacement surgery was scheduled for Monday, July 2, 2007 
in the early afternoon. I was admitted for 3 days until I was 
discharged on Tuesday, July 3. Mary had to drive to my son's home and 
all the way back to our home.
    After the episode, I found that driving on freeways/interstates 
made me very anxious, tense and fearful of the device going off again. 
This anxiety had a huge impact on me and my job. My job as a golf 
irrigation specialist covered 77 counties in Iowa, 17 in Illinois and 3 
in Wisconsin. I could no longer cover these routes due to the anxiety I 
suffered any time I drove on the freeway.
    My inability to drive long distances also affected my personal 
life. I had two fishing trips planned for the fall of 2007. These were 
annual fishing trips that I'd gone on for over 15 years. Both trips 
were impacted by the anxiety I was experiencing. The first trip was in 
the second week of September to Deer River, MN. One of my fishing 
buddies drove the entire distance up and back. While in Deer River, I 
was afraid the device was malfunctioning. I was experiencing chest 
pains so we went to an emergency room where the doctor concluded that I 
was likely suffering from ulcers. Upon returning home, my permanent 
doctor located the ulcers and placed me on medication.
    The second week of October 2007 was the next fishing trip. Again, 
one of the fellows on the trip was kind enough to do all the driving to 
our Hayward, WI destination. I was only able to stay for 1\1/2\ days of 
the 9 day trip before nerves, anxiety, and fear got to me. The same 
fellow drove me the 380 miles home then went back up to finish his 
vacation.
    The anxiety that I feel, especially when traveling, has severely 
limited the number of trips Mary and I take to see family and friends. 
This anxiety has also limited Mary's travel since I worry more when 
she's not there to help calm me down.
    I decided I needed professional help. I began seeing a psychologist 
who taught me some relaxation techniques. These exercises helped to 
calm me down. It was also at this time that I decided that the travels 
and pressure of my sales job were too much to handle, so I moved my 
retirement up to January 3, 2008. This was about a year and a half 
sooner than I had originally planned.
    I had several device checks in 2008 and three trips to the ER 
within 6 months of the lead replacement. The majority of these visits 
were from me feeling that something was not right. One of my biggest 
questions is what effect the numerous shocks from the Medtronic device 
have had on my heart.
    Any unexpected twinge or unusual feeling in the chest area makes me 
very tense. I begin to wonder if the device is working properly or 
whether I need to go to the hospital. It is not a fun way to live.
    My hope is that no one else ever has to go through the pain and 
agony that I experienced with the fractured lead, and that Medtronic is 
held responsible for the injuries it has caused other patients like me.

    Senator Harkin. Thank you very much for a very profound 
statement, Mr. Mulvihill.
    Now we turn to Peter Barton Hutt, a senior counsel in the 
law firm of Covington & Burling, specializing in food and drug 
law. He began his law practice in 1960, and has been with the 
firm ever since. He is also a lecturer on food and drug law at 
Harvard Law School, where he has taught for the last 16 years. 
From 1971 to 1975, he was chief counsel for the FDA. Mr. Hutt 
is a graduate of Yale University and Harvard Law School, earned 
a Master of Laws degree in Food and Drug Law from NYU School of 
Law.
    Mr. Hutt, welcome to the committee. Please proceed.

STATEMENT OF PETER BARTON HUTT, ESQUIRE, SENIOR COUNSEL IN FOOD 
       AND DRUG LAW, COVINGTON & BURLING, WASHINGTON, DC

    Mr. Hutt. Thank you, Mr. Chairman.
    I appear before you today, at the invitation of the 
committee, to present my own personal views on Section 521 of 
the Federal Food, Drug, and Cosmetic Act, which provides for 
national uniformity in the regulation of medical devices.
    Section 521 was enacted, of course, as part of the Medical 
Device Amendments of 1976. As I relate in my prepared 
statement, the Medical Device Amendments of 1976, and 
specifically section 721, were enacted or developed during my 
tenure as chief counsel for FDA, and I was deeply involved in 
their development.
    The medical device bills that were forwarded to Congress by 
President Nixon in 1971 and 1973 contained no provision that 
related to the effect of the law, or proposed law, on State 
law. In August 1973, however, Representative Paul G. Rogers, a 
Democratic Member of Congress from Florida, who was chair of 
the House Subcommittee on Public Health and Environment, 
introduced medical device legislation that, for the first time, 
included a national uniformity provision. On behalf of FDA, I 
strongly supported national uniformity in the requirements for 
medical device regulation, because it would strengthen the 
integrity, the credibility, and the primary jurisdiction of the 
agency.
    From then on, all medical device legislation considered in 
both the House and the Senate included some form of national 
uniformity requirement. The final version was enacted as 
section 521, and it is that provision that would be amended by 
the legislation you're considering today, that would permit 
product liability decisions by judges and juries that are 
inconsistent with FDA decisions.
    Mr. Chairman, because of the time constraint I will 
summarize my testimony with seven brief points.
    First, S. 540 applies only to devices that are determined 
by FDA to be safe and effective under the rigorous premarket 
approval system. We call these premarket approval, or PMA, 
devices. S. 540 does not apply to devices that go through the 
simplified Section 510(k) procedure.
    Second, PMA devices are the lifesaving and life-sustaining 
devices that represent the cutting edge of modern science. They 
are, for example, stents to keep arteries open. They are 
artificial hearts to keep people alive until they can get a 
real heart. They are the innovative new technology that should 
be encouraged, not hindered or discouraged.
    Third, these PMA devices represent only a small fraction of 
all medical devices. Since 1976, only about one-half of 1 
percent of all medical devices have gone through the rigorous 
PMA process. The U.S. Supreme Court had determined that the 
other 99.5 percent that go through the simplified 510(k) 
process are not entitled to national uniformity. And thus, this 
legislation does not affect those.
    Fourth, the PMA devices uniquely require highly 
sophisticated judgment on safety and effectiveness, as Senator 
Hatch has pointed out. The MDs and PhDs at FDA spend more than 
1,000 hours over more than a year to review each one of these 
devices. No one can possibly argue that lay judges and juries 
can do a better job.
    Fifth, allowing judges and juries to second-guess FDA 
decisions on PMA devices strikes at the very heart of the PMA 
system. If judges and juries can ignore FDA, why can't doctors, 
hospitals, and patients, and even companies, ignore FDA? S. 540 
fosters distrust and disrespect for FDA decisions and 
undermines the public health protection that the PMA system is 
intended to provide.
    Sixth, product-liability awards punish companies, there's 
no question about that, but they do not in any way contribute 
to safer or more effective PMA devices. It is the inevitable 
adverse events that we know will always occur with a device 
that lead FDA and companies to correct deficiencies and improve 
the device. But, by the time a lawsuit is brought and 
completed, the problem has been corrected and the safety issue 
has been resolved, to the extent that it can be, if it's not 
inherent in the device.
    Finally, I fully support compensation of people injured by 
PMA devices. There's no question about that. But, the solution 
is not to farm out FDA decisions to juries throughout the 
country. The answer is not to replace national uniformity with 
national inconsistency and regulatory chaos. The jury system is 
nothing short of a lottery. Some plaintiffs win big and others 
come away with nothing. It is an inherently unfair system.
    The goal of providing compensation can most fairly and 
comprehensively be addressed by a statutory procedure like the 
National Childhood Vaccine Injury Act of 1986. Under that 
system, unlike the product liability system, all patients 
injured by a PMA device would be fairly compensated, and not 
just those who are fortunate to find a persuasive trial 
attorney and a sympathetic judge and jury.
    Thank you, sir.
    [The prepared statement of Mr. Hutt follows:]
                Prepared Statement of Peter Barton Hutt
    Mr. Chairman and members of the committee, I am Peter Barton Hutt. 
I am a Senior Counsel at the Washington, DC law firm of Covington & 
Burling LLP and a Lecturer on Food and Drug Law at Harvard Law School 
where I have taught a course on food and drug law during Winter Term 
for the past 16 years. During 1971-1975 I served as Chief Counsel for 
the Food and Drug Administration (FDA). I appear before you today at 
the invitation of the Committee to present my personal views on Section 
521 of the Federal Food, Drug, and Cosmetic Act (FD&C Act), which 
provides for national uniformity in the regulation of medical devices. 
section 521 was enacted by Congress as part of the Medical Device 
Amendments of 1976.
                               background
    During my tenure as Chief Counsel for FDA I was deeply involved 
with the development of medical device legislation. On my very first 
day at FDA in September 1971, FDA Commissioner Charles C. Edwards told 
me that FDA had been unable to obtain clearance by the Nixon 
Administration of the proposed medical device legislation that the 
agency needed, and delegated that task to me. I was successful, and the 
Administration's bill was introduced in December 14, 1971.\1\ 
Commissioner Edwards then delegated to me the responsibility for 
development of FDA policy on the legislation and for negotiation of the 
statutory provisions with the House and Senate. By the time I left FDA 
in May 1975, the legislation had twice passed the Senate,\2\ and the 
House bill \3\ was largely in the form that was signed into law by 
President Ford as the Medical Device Amendments of 1976 \4\ on May 28, 
1976.
---------------------------------------------------------------------------
    \1\ H.R. 12316, 92d Cong., 1st Sess. (1971).
    \2\ 120 Cong. Rec. (February 1, 1974); 121 Cong. Rec. (April 17, 
1975).
    \3\ H.R. 5545, 94th Cong., 1st Sess. (1975).
    \4\ 90 Stat. 539 (1976).
---------------------------------------------------------------------------
    The December 1971 Administration bill contained no provision 
addressing national uniformity. Nor did the successor Administration 
bill, introduced in March 1973.\5\ In August 1973, however, 
Representative Paul G. Rogers (D-FL), Chair of the House Subcommittee 
on Public Health and Environment of the Committee on Interstate and 
Foreign Commerce, introduced medical device legislation that for the 
first time included a national uniformity provision.\6\ On behalf of 
FDA, I strongly supported national uniformity in the requirements for 
medical devices because it strengthened the integrity, credibility, and 
primary jurisdiction of the agency. From then on, all medical device 
legislation considered in the House and Senate included some form of 
national uniformity requirement. The final version was enacted as 
Section 521 of the FD&C Act.\7\ It is that provision that would be 
amended by S. 540 to make it inapplicable to decisions by judges and 
juries in product liability cases that are inconsistent with FDA 
decisions.
---------------------------------------------------------------------------
    \5\ H.R. 6073, 93d Cong., 1st Sess. (1973).
    \6\ H.R. 9984, 93d Cong., 1st Sess., 704 (1973).
    \7\ 21 U.S.C. 360k.
---------------------------------------------------------------------------
   the risk-based regulatory system enacted by congress for medical 
                                devices
    Under the FD&C Act, as amended by the 1976 Amendments and 
subsequent legislation, FDA regulates medical devices according to 
three risk-based classifications. Class I medical devices are those 
simple devices for which general regulatory controls, that are 
applicable to all devices, are sufficient to assure safety and 
effectiveness. Class I devices include tongue depressors,\8\ dental 
floss,\9\ and surgical sponges.\10\ Class II devices are those for 
which special controls, applicable to a particular class of device, are 
enough to ensure safety and effectiveness. Class II devices include 
vascular clamps \11\ and powered wheelchairs.\12\ Class III devices are 
those life-saving and life-sustaining devices for which general and 
special controls are not sufficient, and for which full premarket 
approval is necessary to assure safety and effectiveness. Class III 
devices include implantable pacemaker pulse generators,\13\ 
cardiovascular stents, and artificial hearts.
---------------------------------------------------------------------------
    \8\ 21 CFR 880.6230.
    \9\ 21 CFR 872.6390.
    \10\ 21 CFR 878.4014.
    \11\ 21 CFR 870.4450.
    \12\ 21 CFR 890.3860.
    \13\ 21 CFR 870.3610.
---------------------------------------------------------------------------
    Any Class I, II, or III device may lawfully be marketed if FDA 
clears a premarket notification (PMN) under Section 510(k) of the FD&C 
Act that demonstrates that the device is ``substantially equivalent'' 
to a marketed device that did not require FDA approval of a premarket 
approval (PMA) application.\14\ The PMN process (commonly referred to 
as the 510(k) process) is a relatively simple procedure. A Class III 
device for which there is no marketed non-PMA substantially equivalent 
device, however, requires full premarket approval under section 515 for 
both safety and effectiveness.\15\ This is a much more lengthy, 
complex, and rigorous procedure.
---------------------------------------------------------------------------
    \14\ 21 U.S.C. 360; see also 21 U.S.C. 360c(i).
    \15\ 21 U.S.C. 360e.
---------------------------------------------------------------------------
      application of national uniformity under section 521 to the 
                       medical device categories
    Section 521 provides that no State may impose a ``requirement'' on 
a medical device that is different from or in addition to a requirement 
imposed by FDA. The Supreme Court has interpreted and applied this 
national uniformity provision twice--once with respect to devices 
marketed under Section 510(k) of the FD&C Act, and once with respect to 
PMA devices marketed under section 515.
    In Medtronic, Inc. v. Lohr \16\ the Court held in 1996 that an FDA 
determination that a Class I, II or III device is ``substantially 
equivalent'' to a pre-1976 device is not sufficient to invoke the 
requirement of national uniformity. The Court concluded that FDA did 
not make a sufficiently detailed and searching review of the new device 
and did not approve the device as safe and effective. Thus, a court 
decision in a product liability case that was inconsistent with an FDA 
decision was allowed to stand.
---------------------------------------------------------------------------
    \16\ 518 U.S. 470 (1996).
---------------------------------------------------------------------------
    In the more recent case of Riegel v. Medtronic, Inc.,\17\ the Court 
held in 2008 that a PMA device was subject to a comprehensive review by 
FDA under section 515 and was explicitly determined by the agency to be 
safe and effective. Accordingly, the Court concluded that the national 
uniformity provisions of section 721 apply. A court decision in a 
product liability case that was inconsistent with an FDA determination 
was therefore struck down.
---------------------------------------------------------------------------
    \17\ __U.S.__(2008), 128 S.Ct 999.
---------------------------------------------------------------------------
                  exemptions from national uniformity
    Under section 721, any State or city may petition FDA for an 
exemption from national uniformity. FDA may grant the exemption if the 
State or local requirement is more stringent than the FDA requirement, 
it is required by compelling local conditions, and it would not cause 
the device to violate any provision of the FD&C Act. FDA has in fact 
granted such exemptions.\18\
---------------------------------------------------------------------------
    \18\ 21 CFR part 808.
---------------------------------------------------------------------------
       national uniformity for pma medical devices reviewed and 
            explicitly approved by fda as safe and effective
    At issue today is the narrow question of whether devices approved 
by FDA under the rigorous standards of premarket approval (PMA 
devices)--which comprise less than one-half of 1 percent of all the 
medical devices authorized by FDA for marketing since 1976 \19\--should 
continue to be protected under section 521 from inconsistent and 
different standards set forth by judges and juries under State product 
liability law. It is important to understand that the bill under 
consideration--S. 540--will affect only about one-half of 1 percent of 
all medical devices marketed in the United States. Only about 2 percent 
of all devices are Class III devices, and about 80 percent of those are 
marketed under the simplified section 510(k) procedure. Thus, about 
99.5 percent of devices come to market under the section 510(k) 
process. Under the Supreme Court's Lohr decision, national uniformity 
does not arise from a finding of substantial equivalence under section 
510(k), even for a Class III device.
---------------------------------------------------------------------------
    \19\ GAO Report to Congress: FDA Should Take Steps To Ensure That 
High-Risk Device Types Are Approved through the Most Stringent Review 
Process at 1 (January 2009); Lohr, 518 U.S. at 479.
---------------------------------------------------------------------------
    The half percent of devices that are the subject of full premarket 
review and approval under section 515, however, represent cutting edge 
science. They are the new life-saving and life-sustaining devices that 
are critical to the public health. They are the highest priority 
devices--those for which we should do everything we can to encourage 
investment in research and development.
    It is those devices that are targeted by S. 540. The proposed 
legislation would allow judges and juries throughout the country not 
only to impose requirements that are inconsistent with FDA 
determinations, but that differ from one court to another. The result 
would be regulatory chaos.
                    the rigor of the fda pma process
    The PMA process is scientifically rigorous and demanding. The 
Supreme Court has described it as follows:

          Premarket approval is a ``rigorous'' process. Lohr, 518 US at 
        477. A manufacturer must submit what is typically a multivolume 
        application. FDA, Device Advice-Premarket Approval (PMA) 18, 
        http://www.fda.gov/cdrh/devadvice/pma/printer.html. It 
        includes, among other things, full reports of all studies and 
        investigations of the device's safety and effectiveness that 
        have been published or should reasonably be known to the 
        applicant; a ``full statement'' of the device's ``components, 
        ingredients, and properties and of the principle or principles 
        of operation;'' ``a full description of the methods used in, 
        and the facilities and controls used for, the manufacture, 
        processing, and, when relevant, packing and installation of, 
        such device;'' samples or device components required by the 
        FDA; and a specimen of the proposed labeling. 360e(c)(1). 
        Before deciding whether to approve the application, the agency 
        may refer it to a panel of outside experts, 21 CFR 814.44(a) 
        (2007), and may request additional data from the manufacturer, 
        360e(c)(1)(G).
          The FDA spends an average of 1,200 hours reviewing each 
        application, Lohr at 477, and grants premarket approval only if 
        it finds there is a ``reasonable assurance'' of the device's 
        ``safety and effectiveness,'' 360e(d). The agency must 
        ``weig[h] any probable benefit to health from the use of the 
        device against any probable risk of injury or illness from such 
        use.'' 360c(a)(2)(C). It may thus approve devices that present 
        great risks if they nonetheless offer great benefits in light 
        of available alternatives. It approved, for example, under its 
        Humanitarian Device Exemption procedures, a ventricular assist 
        device for children with failing hearts, even though the 
        survival rate of children using the device was less than 50 
        percent. FDA, Center for Devices and Radiological Health, 
        Summary of Safety and Probable Benefit 20 (2004), online at 
        http://www.fda.gov/cdrh/pdf3/H030003b.pdf.
          The premarket approval process includes review of the 
        device's proposed labeling. The FDA evaluates safety and 
        effectiveness under the conditions of use set forth on the 
        label, 360c(a)(2)(B) and must determine that the proposed 
        labeling is neither false nor misleading, 360e(d)(1)(A).

        * * * * * * *

          Once a device has received premarket approval, the MDA 
        forbids the manufacturer to make, without FDA permission, 
        changes in design specifications, manufacturing processes, 
        labeling, or any other attribute, that would affect safety or 
        effectiveness. 360e(d)(6)(A)(i). If the applicant wishes to 
        make such a change, it must submit, and the FDA must approve, 
        an application for supplemental premarket approval, to be 
        evaluated under largely the same criteria as an initial 
        application. 360e(d)(6); 21 CFR 814.39(c).
          After premarket approval, the devices are subject to 
        reporting requirements. 360i. These include the obligation to 
        inform the FDA of new clinical investigations or scientific 
        studies concerning the device which the applicant knows of or 
        reasonably should know of, 21 CFR 814.84(b)(2), and to report 
        incidents in which the device may have caused or contributed to 
        death or serious injury, or malfunctioned in a manner that 
        would likely cause or contribute to death or serious injury if 
        it recurred, 803.50(a). The FDA has the power to withdraw 
        premarket approval based on newly reported data or existing 
        information and must withdraw approval if it determines that a 
        device is unsafe or ineffective under the conditions in its 
        labeling. 360e(e)(1); see also 360h(e) (recall 
        authority).\20\
---------------------------------------------------------------------------
    \20\ __U.S. at__, 128 S.Ct at 1004-1005; see also Lohr at 477.
---------------------------------------------------------------------------
    national uniformity should be retained for class iii pma devices
    National uniformity for FDA requirements of design and labeling for 
a Class III PMA medical device is the right policy for several reasons.
    First, national uniformity in the regulation of Class III PMA 
devices is essential to preserve the jurisdiction and integrity of the 
FDA PMA process. In two 1973 cases that I took to the Supreme Court 
during my tenure as FDA Chief Counsel, the Court held that FDA has 
``primary jurisdiction'' to decide matters that have been entrusted to 
its implementation.\21\ S. 540 would strike at the very heart of this 
doctrine. If judges and juries can summarily disregard FDA decisions on 
Class III PMA devices, why should physicians, hospitals, or anyone else 
pay attention to them? S. 540 undermines the credibility and authority 
of the country's most important public health agency.
---------------------------------------------------------------------------
    \21\ Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 
627 (1973); Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 
652-654 (1973).
---------------------------------------------------------------------------
    Second, as the expert agency to which Congress delegated the 
responsibility for determining the safety and effectiveness of medical 
devices used throughout the country, FDA is in a better position to 
make the determinations of whether devices should be marketed than are 
the juries in diverse courts in the 50 States. As Justice Breyer stated 
during the oral argument for Warner Lambert v. Kent, ``who would you 
rather have make the decision that this [product] is, on balance, going 
to save people or, on balance, is going to hurt people? An expert 
agency, on one hand, or 12 people pulled randomly for a jury role, who 
see before them only the people whom the [product] hurt and don't see 
the people who need the [product] to cure them?'' \22\ It is no defense 
to say that FDA is not always perfect, or is understaffed. Although no 
agency is perfect, FDA's expert medical reviewers are far more 
qualified to determine the safety and effectiveness of life-saving 
Class III PMA medical products than are lay juries. And if FDA is 
underfunded--something I have been saying for years \23\--the solution 
is not to farm FDA's work out to juries, but rather to provide adequate 
funding for FDA. Congress has in fact responded to FDA's need for 
additional funds both by user fees and by an increase in appropriations 
from $1.4 billion to $2.3 billion since 2007.
---------------------------------------------------------------------------
    \22\ Transcript of Oral Argument, Warner Lambert v. Kent, No. 06-
1948, at 30-31 (February 25, 2008).
    \23\ Peter Barton Hutt, The State of Science at the Food and Drug 
Administration, 60 Administrative Law Review 431 (Spring 2008).
---------------------------------------------------------------------------
    Third, allowing juries in the 50 States to impose individualized 
standards would result in a chaotic system in which a manufacturer 
could avoid State court liability only by marketing different devices 
in each different State, and then on pain of violating Federal 
requirements set forth by FDA in the PMA approval.
    Fourth, product liability actions can have the effect of 
manufacturers seeking to label their products with additional or 
unsubstantiated warnings, which can result not only in underutilization 
of valuable treatments but in confusing both physicians and their 
patients. ``Defensive labeling'' by manufacturers helps no one.
    Fifth, allowing claims to proceed against devices that comply with 
FDA requirements can result in devices being removed from the market 
that FDA has determined are, on balance--and for the population for 
which they are intended--more beneficial than harmful. And it can 
severely deter needed innovation. In this regard, it is important to 
focus not only on those who may be harmed by approved devices, but also 
those who are helped by those same devices, and who might be harmed if 
the devices were removed from the market.
    Sixth, product liability damage awards punish device manufacturers, 
but they do not contribute to safer devices. It is the inevitable 
adverse events that lead FDA and the manufacturer to correct 
deficiencies. By the time that a product liability lawsuit is brought 
and resolved, the defect has been found and corrected, and the safety 
issue has been resolved--assuming, of course, that there is a defect 
that can be corrected and that the risk is not inherent in all uses of 
the device. Thus, the sole rationale for product liability lawsuits is 
to obtain adequate compensation for the injured patient.
    Seventh, although compensation of injured parties must be achieved, 
it surely is not an answer to resort to the lottery system of jury 
trials, where some plaintiffs win big and others lose everything 
because of the vagaries of judges and juries. The goal of providing 
compensation can most appropriately be addressed through a statutory 
procedure that will not drive valuable products from the market, such 
as the National Childhood Vaccine Injury Act of 1986.\24\ Unlike the 
product liability system, all patients injured by a PMA device would be 
fairly compensated, not just those who are fortunate to find a 
persuasive trial attorney and a sympathetic judge and jury.
---------------------------------------------------------------------------
    \24\ 100 Stat. 3755 (1986).
---------------------------------------------------------------------------
    Finally, we must keep in mind that national uniformity is a narrow 
doctrine. It does not apply to claims that a Class III PMA device 
failed to meet Federal requirements--for example, a claim that the 
device was negligently manufactured. If, for example, a manufacturer 
fails to meet the specifications for the strength or composition of the 
device set forth in the PMA approval, national uniformity would not 
affect the claim advanced by a plaintiff injured by this failure. And 
because less than one-half of 1 percent of devices enter the market 
through the PMA process, it applies only to a small category of 
devices.
    Mr. Chairman, I appreciate the opportunity to present this 
testimony, and would be pleased to respond to any questions.

    Senator Harkin. Thank you very much, Mr. Hutt.
    And now we go to Michael Roman.
    Michael Roman is from Kirkwood, MO. Well, that's not too 
far from Iowa.
    Mr. Roman. No sir.
    Senator Harkin. Mr. Roman is a Formula One racer. He is 
here to discuss his experience with a medical device which has 
enabled him to continue racing.
    Welcome.

       STATEMENT OF MICHAEL ROMAN, PATIENT, KIRKWOOD, MO

    Mr. Roman. Thank you, Mr. Chairman, as well as you, Members 
of the committee.
    My wife, Susy, and I come here today with a simple story to 
share with the committee, a story of help, hope, and heroes.
    In 1994, while working in a hospital in St. Louis, MO, I 
had a knee arthroscopy done to repair a torn meniscus in my 
right knee, and developed a staph infection during that 
procedure. Indeed, my nightmare began that day, as well as my 
families'. I've endured 12 debridements, 28 weeks of IV 
antibiotics, 33 surgeries, three progressive amputations to try 
to save the leg, and the leg is now gone completely at the hip.
    You see, I immediately began to experience phantom limb 
pain. They were so severe that I could only make it through the 
day with, really, increasingly large doses of medications; 
medications like Vicodin and OxyContin and morphine, medicines 
that left me with only really a hazy recollection of the last 
decade of my life. And it was during that time that I sought 
out any and all treatment options to control my pain. These 
included radiation, injections, implantable drug pumps. And in 
2000, we even tried a spinal cord stimulator. It's a device 
that electrically stimulates the spinal cord to disrupt those 
pain signals as they travel to the brain.
    The spinal cord stimulator we tried was based off of old 
pacemaker technology, and honestly, it was worse than the 
problem it was designed to treat. It replaced one type of pain 
with a new one, one that was far worse for me and my family. 
So, back on the meds we went.
    Finally, in 2005 I tried a new type of spinal cord 
stimulator. This one did manage to provide me with some relief 
and hope of a recovery. The device I use is a Precision Plus 
spinal cord stimulator, and this is designed off of technology 
that is from the cochlear implant, designed to help people hear 
again. The system allows me to manage my pain, no matter what 
my activity level is, if I'm watching TV or relaxing, or on the 
salt flats in beautiful Utah trying to set a new record.
    Once I got the device, the first thing we, as a family, did 
was--I needed to get off the pain medicines, and that's what we 
slowly started to do. I slowly started to get my life back. And 
because I got it back, my wife, Susy, is here with me today.
    In addition to our racing, we travel all over the country 
and speak to pain patients and doctors about the treatment 
options that are out there. It was, as a result of these 
experiences, what allowed us to accept your invitation to be 
here today to talk about this. I think it's a very important 
issue.
    We have talked to many of our veterans coming back from our 
conflicts in Iraq and Afghanistan, and I do know how hard it is 
to seek out treatments, and how scary it can be.
    And the technology I had implanted in 2005 was absolutely 
cutting-edge technology. Was it risky? It was. Did I understand 
that the technology may not work? I absolutely did. Did my 
doctor sit down and express to me, not only all the risk of a 
normal operation, but the risk of this product would be? We 
positively did.
    You know, part of our call to action was, What if Congress 
had enacted this Medical Device Safety Act back in 2000? For me 
and my family it would have been, ``game over.'' It really does 
scare us to think where we would be as a family today if some 
researcher in 2002 decided the status quo was good enough, that 
the $60 million in investment made in developing, testing, and 
marketing the device, and putting a cutting-edge FDA product on 
the market, only to have that product's value systematically 
reduced by lawsuits, just weren't worth it.
    You see, there are millions of people out there, some of 
them are your family members, who one day might benefit from 
breakthroughs in therapies still in development. We need to 
think about these people and these families--parents, husbands, 
brothers--when we think about the consequences of this bill.
    Do I want safe products? Absolutely. For me, the question 
is a very simple one, Senator. It's, Who decides? Is it the FDA 
experts, or juries, made up of people just like me? No 
particular expertise. And I think the hardest part is that 
juries see only that injured person. They don't see the 
thousands and thousands of patients that have benefited from a 
technology. To me, the choice is clear: We need safe products, 
we need innovation. And I think the best way to do that is, not 
through litigation, but through a well-funded, strong FDA.
    Thank you.
    [The prepared statement of Mr. Roman follows:]
                 Prepared Statement of Michael G. Roman
    Good afternoon Mr. Chairman and members of the committee, I have a 
simple story to share with this committee. A story of help, hope and 
heroes.
    I am a one-legged race car driver with four land speed records to 
my name--you might think that makes me unique. In fact, most people who 
spend more than 5 minutes with me come away convinced that I am a 
``broke-the-mold'' kind of guy.
    But the chronic pain that I have lived with--and now successfully 
manage--isn't just my story. According to the American Medical 
Association, 45 million Americans will seek care for persistent pain at 
some point in their lives.
    But before I talk about those millions of people--your 
constituents--let me share my background.
    In 1994, I was employed as an operating room technician. I 
underwent surgery to repair a torn knee ligament.
    During that surgery a staph infection set in, and my nightmare 
began.
    I endured 12 debridements, 28 weeks of intravenous antibiotics, 33 
surgeries, and three progressive amputations of my right leg, which is 
now completely gone.
    I immediately began to experience phantom limb pain. The pain was 
so severe that I could only make it through the day with increasingly 
large doses of pain medications--Vicodin, Percocet, OxyContin, 
Neurontin, Serzone, Valium and eventually Morphine--heavy drugs that 
left me with only hazy recollections of a decade of my life.
    For that decade, I was a parent and a spouse in name only.
    I cannot remember 10 years of my children's lives. I was depressed, 
and I even thought about ending my own life. I can only offer my 
sincerest thanks to my wife Susy for standing by me for those years. 
She helped give me hope--something I struggled not to lose.
    During that time, I sought-out alternatives to manage my pain, 
including radiation, injections and even an implantable drug pump. In 
2000 I tried a spinal cord stimulator, a device that electrically 
stimulates the spinal cord and disrupts the pain signals as they travel 
to the brain.
    While different patients respond differently to therapies, for me, 
this spinal cord stimulator--which relied on old pacemaker technology--
was worse than the problem it was designed to treat. It replaced one 
type of pain with a new and different type of pain that was far worse 
for me.
    So I went back on the meds, convinced that was where my family and 
I would remain.
    And for a time we did. But as my tolerance for medication 
increased, I needed increasingly larger doses of medication to manage 
my pain, a cycle that had to change.
                             a breakthrough
    Finally, on yet another trip to a new physician in 2005, I agreed 
to try a new type of spinal cord stimulator. I was convinced it 
wouldn't work, but I agreed only because my doctor said that he 
wouldn't give me any more increases in medications until I tried this 
new device out.
    Unlike the device that I tried in 2000, this device did something I 
didn't expect.
    It managed my pain and provided me with some hope for recovery!
    I am not pain free today, but I can manage my pain. I use a device 
called the Precision Plus--Spinal Cord Stimulator System, which is 
designed around the same technology used to bring back people's 
hearing--cochlear implant technology. It's programmable, easy to use, 
lightweight, and it has a long rechargeable battery life.
    The system I use has an electrode lead implanted into my spine. I 
use a wireless remote control to ``talk'' with and control the impulses 
directed through these leads with a software program that lets me 
deliver a specific dose of electrical current precisely where I need 
it. That control lets me manage my pain based on my circumstances 
moment-to-moment. My pain management needs change based on whether I'm 
relatively quiet and watching TV, or more active and exercising, even 
racing.
    Once I got the device, the first thing we needed to do was to get 
me off the high doses of medication. I simply didn't need them anymore.
    I slowly got my life back. And because I got my life back, I got my 
family back. My wife Susy is here with me today. It's safe to say that 
a decade ago, no one in our family would have believed that we might 
have the opportunity to share the story of our success with the U.S. 
Senate. It's an honor and a privilege to have received your invitation 
to be here today.
                    my role in the race against pain
    Once I got my life and my family back, Susy calls it, ``The Great 
Awakening,'' I started doing one of the things I do best, complaining.
    The first people I complained to were the people that built the 
device. I pity (a little bit) the day that Doug Lynch got his first 
call from me at Boston Scientific. He got a rant from me about what a 
poor job the company was doing telling patients and physicians about 
the benefits of this device.
    Little did I know at the time how lucky I was that Doug answered my 
call. You see, Doug was deaf, and the same cochlear implant technology 
that had helped me manage my pain allowed him to hear again. He took my 
call with an open mind, and listened to what I had to say.
    I knew I was not alone, that there were lots of people sitting in 
living rooms, or hiding in their bedrooms, all across the country who, 
like me, were prisoners of their pain and could benefit from the same 
technology that had helped me.
    ``What are you, as a company, doing to help them,'' I said. ``We 
got to do more to spread the word about this amazing treatment!''
    I had no idea what I was getting myself into.
    Ultimately, I'm not sure whether I was drafted, or I enlisted. 
Today, in addition to our racing, Susy and I travel the country to talk 
about chronic pain and what can be done to treat it, to anyone who will 
listen.
    Boston Scientific sponsors the Race Against Pain Web site, a place 
where pain patients can find support. They are also the primary sponsor 
of my race team.
    After speaking with thousands of chronic pain sufferers all over 
this Nation, I know how hard it is for patients to open up, to share 
what they're feeling, and especially to seek out new treatments. It's 
not every day that these patients meet a one-legged racecar driver, so 
we rarely need a conversation starter.
    What I then try to do is get patients to see a different future by 
sharing the story of the path Susy and I have traveled. That's an 
important first step for many chronic pain sufferers who have given up 
all hope for recovery.
    In 2008, my wife Susy and I had the privilege of visiting some of 
the wounded soldiers who were rehabilitating over at Walter Reed here 
in Washington, something we encourage each of you to do. We planned to 
stop by for an hour. We ended up spending 6 hours visiting with men and 
women who have been seriously injured in the service of our Nation. 
There I learned about the potential of medical technology. The cochlear 
implant technology that eventually morphed into the technology that 
helped me is just the beginning. We know so little about how the human 
brain works, but we're learning more every day about how medical 
technology can help not just these wounded veterans, but can lead to 
breakthroughs in fields like Alzheimer's research, Parkinson's 
treatment, and epilepsy.
    Through my experience at Walter Reed, I also became familiar with 
the Wounded Warrior program that gets injured veterans back on track--
onto bicycles and into civilian careers. Susy and I were so moved by 
these men and women that we placed the Wounded Warrior Project logo on 
our racecar to raise awareness and have participated in a number of 
these soldier rides to show veterans that with the right attitude and a 
little technology, it's possible to get your life back. These men and 
women remain our personal heroes.
                  about the medical device safety act
    I'm not an expert on the law, and I certainly do not have the 
awesome responsibility of shaping public policy. But I can assure you 
that in the space of just 5 short years, what may have seemed like 
small changes in spinal cord stimulator technology made a huge 
difference not just in my life, but also in the lives of my wife and 
children and grandchildren. They got their husband and father back, and 
the dad and grandfather who lost his leg once again found his purpose 
in life.
    The technology that is implanted in me pushed the envelope when it 
was installed in 2005. Was it risky? Yes. Did I understand that this 
technology might not work, because each patient responds differently? 
Yes. Did I talk with my doctor about the risks and benefits of this 
product? Absolutely. You could say I went under the knife, as I had 
done some 38 times previously, with my eyes wide open.
    But what if Congress had enacted the Medical Device Safety Act in 
2001? For me, I'm sure it would have been game over.
    It scares us to think I would lose the life I have today because a 
researcher decided to throw in the towel in 2002--deciding that the 
status quo was good enough--and that the $60 million in development and 
testing costs of my device weren't worth the risk of putting a cutting 
edge, FDA-approved product on the market, only to have that product's 
value systematically reduced by lawsuits. There are millions of people 
out there who might one day benefit from the breakthrough therapies 
still in development. We need to think about those people when we think 
about the consequences of this bill.
    Do I want safe products? Absolutely. For me, the question is who 
decides.
    Is it scientists at the FDA who carefully study every aspect of a 
device and can balance the benefits of a device to patients like me 
versus the risks? Or is it a jury made up of people like me? One-legged 
race car drivers, teachers, bus drivers, bikers, veterans, waiters and 
waitresses--who may not have the necessary expertise to make the best 
decision, especially since juries see only an injured person, not all 
the beneficiaries of medical technology.
    To me, that choice is clear. We need safe products and we need 
innovation, and the best way to achieve both goals is not through 
litigation created by this bill, but through a strong, well-funded FDA.

    Senator Harkin. Thank you very much, Mr. Roman, for a 
very--again, it was a profound statement and--about your 
experiences.
    Now, I don't know when we're going to start votes, but 
we'll start a round of just 5-minute questions, so we can try 
to get everybody in. So, whoever's running the clock, start me 
at five. There you go. Thank you.
    Well, thank you all very much for being here today. This 
is, obviously, an extremely important issue, and one that we 
are going to address, hopefully soon.
    I wanted to start with Professor McGarity. Opponents claim 
that this law, by reexposing the medical device manufacturers 
to liability, would lead to a loss of innovation in the medical 
devices market, the kind of innovation that Mr. Roman was 
talking about. Is there any evidence at all to suggest this 
might be the case?
    Mr. McGarity. I have not seen evidence to that effect at 
all. I think that a company will be looking forward to the 
market, and lots of considerations will affect that 
determination. But, the likelihood that they will be sued if 
they do a bad job, I don't think is one of the major 
considerations that play out there.
    And certainly, just looking at the objective evidence of 
it, I don't see evidence of that, no, sir.
    Senator Harkin. I want to try to understand something.
    Mr. Hutt--maybe I can get somebody else involved in this, 
too--I want to try to understand the difference between drug 
regulation--FDA drug regulation and medical devices. In Wyeth 
versus Levine, the Court held that the pharmaceutical 
regulation does not preempt State tort liability. In Wyeth, the 
Court held that the FDA has long maintained that State law 
offers an additional and important layer of consumer protection 
that complements FDA regulation. So, why are medical devices 
different than drugs?
    Mr. Hutt. Well, let me try to explain that in seven 
different layers. First of all, we're talking here about a 
statutory scheme that could be applied, but hasn't been 
applied, to drugs. So, on a pure legislative basis, they've 
been handled differently by Congress at different times. That's 
just setting on the statutory basis.
    With regard to the difference between them, there's a huge 
difference between medical devices and drugs. For example, the 
standards for safety and effectiveness for medical devices are 
significantly different under the Federal Food, Drug, and 
Cosmetic Act. That was done purposely by the people who drafted 
the legislation, and I was one of those who did draft the 
Medical Device Amendments of 1976. And it was because medical 
devices are contraptions, and drugs are fixed molecules. You 
can change medical devices; you can't change a molecular entity 
that is called a drug.
    So, for a wide variety of public policy reasons, Congress 
has seen fit to do things differently for these two types of 
very, very different products.
    Senator Harkin. So, it's just that Congress made that 
decision.
    Mr. Hutt. Yes, Congress did.
    Senator Harkin. OK. So, then obviously we could make a 
different decision.
    Mr. Hutt. Yes. There is no question. I don't disagree. This 
is not a constitutional issue.
    Senator Harkin. Constitutional question.
    Mr. Hutt. This is a statutory issue.
    Senator Harkin. All right. OK. So, really, the difference 
between drugs and devices is simply a difference that we have 
stated, legislatively.
    Mr. Hutt. Well, there's an inherent difference----
    Senator Harkin. Well----
    Mr. Hutt [continuing]. In them, also. As I said, you can't 
change a drug; you can change a device.
    Senator Harkin. Why can't you change a drug?
    Mr. Hutt. Well, it's----
    Senator Harkin. They can change it chemically. They can 
change it----
    Mr. Hutt. Well, then it becomes a different drug. And it 
may lose, completely, its safety and effectiveness if you 
change it. But if----
    Senator Harkin. Can you change a medical device without 
going through a premarket approval?
    Mr. Hutt. No. My point is that device technology--and this 
is a very interesting way that it's developed--device 
technology, it's very well recognized, is an iterative process. 
We just had a vivid description of how it develops over time. 
You can't change a drug over time. It is what it is.
    Senator Harkin. But, it--Professor McGarity.
    Mr. McGarity. If I may, there are certainly differences 
between drugs and devices, but the issue in Wyeth v. Levine had 
to do with the warning. And the warning is much more like a 
device, in the sense that it's an iterative process, that you 
can change the warning if the product warning isn't working, or 
if something else has come up that needs to be changed on the 
warning. It is the very same iterative process. So, I would 
suggest that the difference is not that great at all.
    Senator Harkin. I was just reminded by my staff that we 
change drugs all the time for kids--change them all the time--
for dosages and recommended treatments and things, for drugs. 
So.
    Mr. Hutt. That's changing the labeling. It's not changing 
the molecular entity, which is ``the drug.'' You can change 
``the device'' by adding something to it, by--I always say, by 
putting bells and whistles on it. You can't do that once you 
have a molecular entity, which is a drug. That drug is fixed 
for all time.
    Senator Harkin. It just seems to me they're changing drugs 
all the time. But, I'll have to think about that a second. I'm 
over my time.
    Senator Hatch.
    Senator Hatch. Thank you. One thing that I think needs to 
be made clear is that everybody here wants to see people who 
are injured be fairly compensated when they suffer injuries 
resulting from another person's negligence. Indeed, I don't 
think any of us want to prevent people who have been truly 
wronged from receiving fair compensation. You've expressed 
yourself that way, as well.
    Mr. Hutt. Yes, sir.
    Senator Hatch. But, it seems to me that, though the MDA, as 
clarified by the Riegel decision, provides device manufacturers 
some level of protection from litigation, many avenues still 
remain open.
    Mr. Hutt. That is correct.
    Senator Hatch. Yes. Under current law, a patient can still 
sue a manufacturer if the device fails.
    Mr. Hutt. It is a very complex issue----
    Senator Hatch. Right.
    Mr. Hutt [continuing]. Senator Hatch, as to exactly where 
product liability----
    Senator Hatch. Sure.
    Mr. Hutt [continuing]. Would be cut off, and would not.
    Senator Hatch. That's right.
    Mr. Hutt. If the manufacturer follows the requirements of 
FDA laid down in the PMA approval----
    Senator Hatch. Right.
    Mr. Hutt [continuing]. Which are very specific--they set 
exactly how the device will be made, and how it will be 
labeled--if those are followed, then there could be no 
liability. But, if they failed to follow them, then, you're 
correct, there could be.
    Senator Hatch. OK. If there's a manufacturing defect, what 
about that?
    Mr. Hutt. That would mean--if you're saying, ``If there is 
failure to follow the FDA requirement''----
    Senator Hatch. Right.
    Mr. Hutt [continuing]. That kind of a defect, yes.
    Senator Hatch. OK. And if----
    Mr. Hutt. But, please--there's one thing that we have to 
all understand. Devices, like drugs, often inherently have 
problems--they don't act perfectly in everyone. And, as a 
result, a drug or device that might save my life could hurt 
someone else, even though it's a perfectly good device or drug. 
So, the fact that it hurts someone doesn't mean there's a 
defect. It may be working the best it can. And it may save 999 
lives, and fail to save the 1,000th life. That doesn't mean 
it's defective.
    Senator Hatch. Well, if the device is labeled in a manner 
that's inconsistent with the FDA's requirements, you can sue, 
there.
    Mr. Hutt. Yes.
    Senator Hatch. OK. Now, a device manufacturer may also be 
liable if they mislead the FDA during the premarket approval 
process.
    Mr. Hutt. Not only would they be liable, they would be 
criminally liable.
    Senator Hatch. Right.
    Mr. Hutt. It's a criminal violation of the act, in any way 
to withhold information from FDA or to submit false 
information.
    Senator Hatch. A patient can also sue for physician errors 
associated with an FDA-approved device, right?
    Mr. Hutt. Yes.
    Senator Hatch. OK. So it seems to me that those instances 
where a device manufacturer can truly be proved negligent or 
otherwise at fault, the statutory preemption in the MDA has 
little or no effect.
    Mr. Hutt. Yes.
    Senator Hatch. OK.
    Now, America leads the world in the development of 
innovative and life-sustaining medical devices. The 
entrepreneurial environment, which is very unique to this 
industry, is the backbone of what sets medical innovation apart 
from other countries throughout the world--or, around the 
world. In fact, the medical technology industry is one of the 
few that has actually continued to create economic 
opportunities for thousands of American families, despite the 
challenging economic environment.
    Now, the decision to develop a medical device is highly 
risk-
dependent. For many, it begins with an entrepreneur or start-up 
company competing to attract venture capital and other 
investments to bring their product to the next stage. Now, 
venture capitalists are risk-focused. When deciding to invest 
in a promising medical technology, venture capitalists take 
many matters into consideration, such as patient benefit, 
intellectual property protection, and risk of liability. And 
any uncertainty in any of those elements can be a significant 
deterrent to investing in any kind of promising technology.
    Now, I'm greatly concerned that, without the preemption and 
the uncertainty of the risk of liability, medical device 
development and innovation could be stifled. And you've 
indicated that you feel that way, as well.
    Mr. Hutt. Senator Hatch, I have personal experience with 
that. I sit on the board of directors of 10 small biotechnology 
companies, some of which are engaged in the development of 
medical devices. And the decisions made by venture capitalists, 
based upon such issues as potential liability, directly affect 
every one of those companies.
    Senator Hatch. OK. Well, my time's up.

                       Statement of Senator Burr

    Senator Burr. Thank you, Mr. Chairman. I'll be brief. I may 
not take 5 minutes, because I'm not going to ask a question.
    I want to thank all of our witnesses. We've assembled quite 
an expertise of experience and knowledge and personal stories.
    You know, several months ago we were in this room--and I 
have deep respect for Senator Harkin--debating tobacco. And at 
that point, the FDA was the only agency in the world that could 
regulate tobacco. They were the only ones that had the 
expertise. CDC wasn't good enough. There was no other agency. 
The FDA was the only gold standard. They had the only brain 
trust of employees that could wade through a complicated 
process.
    A month ago, we were in this room debating healthcare 
reform. And in that healthcare reform debate we talked about 
the need for more drugs, more biologics, more devices, greater 
innovation. We needed better outcomes, we needed more 
investment to make sure that the outcomes of the American 
people were, in fact, better.
    And now we're here because the result of an 8-to-1 U.S. 
Supreme Court interpretation of a law that was put in place in 
1976 that, all of a sudden, 33, I believe, years later, this is 
the single most important things that we've got on our plate 
right now. What's changed?
    Well, I trust my colleague. He said our goal is to only get 
safe products to market. Now, Mr. Hutt, you and I have been at 
FDA, you twice as long as I have. We both know that that's an 
impossible statement.
    Mr. Hutt. Yes, sir.
    Senator Burr. And let me just read from your testimony if I 
can, and I don't think you did it in your shortened testimony.

          ``It's those devices that are targeted in S. 540. The 
        proposed legislation would allow judges and juries 
        throughout the country, not only to impose requirements 
        that are inconsistent with FDA determinations, but that 
        differ from one court to another. The result would be 
        regulatory chaos.''

    If anybody questioned why Mr. Roman is here, then that's 
the answer. If you have regulatory chaos, you have no 
investment, you have no innovation, you have no venture capital 
that's at the table trying to drive the next device. You, 
therefore, have no innovation, you decrease the outcome of 
health incidents in the country.
    Now, the New England Journal of Medicine stated recently 
that 54 cents of every dollar paid to an injured patient is 
diverted to administrative cost. The majority of the 
administrative cost is the legal fee. It's becoming clear as to 
why we're here. It's because the U.S. Supreme Court has 
tightened where you can go to court and, more importantly, 
affected their pocketbooks.
    Now, Mr.--Mulvihill.
    Mr. Mulvihill. Mulvihill.
    Senator Burr. Listen, I want to make sure anybody injured 
in this country is taken care of, and I don't question your 
injuries one bit if there was a defective lead.
    I think Mr. Hutt covered that, when a manufacturer is 
negligent on something, if a manufacturer does not follow that 
proscribed by FDA--and FDA requirements are fairly clear. 
They're black and they're white. There is no gray area, I've 
found, in--whether it's drugs, devices, or biologics. It is 
pretty specific on marketing, on labeling, and on everything. 
If a company goes outside of that, they're basically open game.
    Mr. Chairman, I'm going to conclude. I've got 40 seconds 
left, but I want to ask unanimous consent to enter into the 
record, from the Blind Veterans Association, a letter, and I'll 
just quote the one line, ``We, therefore, strongly urge you to 
oppose the Medical Device Safety Act of 2009.''
    Also, the American Military Society, ``Deciding which new 
medical devices are safe enough to be sold in this country is 
the job for doctors and scientists at the FDA, not juries.''
    The U.S. Veterans Hospice Committee, ``Our opposition to 
this legislation is driven by our strong belief in the need for 
greater access by these veterans to many medical devices used 
in the end-of-life hospice-care setting.''
    And last, but not least, a letter signed by a number of 
companies--I'll just highlight a few--the American Health Care 
Association, American Insurance Association, American Tort 
Reform Association, the Business Round Table, GE Healthcare, 
3M, National Association of Manufacturers, U.S. Chamber of 
Commerce. Their last line, ``For these reasons, and others that 
are detailed in the attached letter from March, we strongly 
urge you to oppose this legislation.''
    I would ask unanimous consent that they be included in the 
record.
    Once again I thank our witnesses for being here.
    Senator Harkin. Without objection.
    [The information referred to may be found in Additional 
Materials--Letters of Opposition.]
    Senator Harkin. Thank you very much, Senator.
    Senator Hagan.

                       Statement of Senator Hagan

    Senator Hagan. Thank you, Mr. Chairman.
    And I just want to thank all of the witnesses for being 
here today, and especially the two men--the patients. Thank you 
so much for your testimony.
    I just have one question, I wanted to ask--and I'm not sure 
exactly who this is addressed to--but for individuals who have 
a defective device, and then you have to go back into the 
hospital and have the device removed, and other payments, 
whether it's the actual surgery, the hospital, the physician, 
who pays for that?
    Dr. Maisel.
    Dr. Maisel. I think that's an excellent question, and a 
very important question in this era of health reform. But the 
answer is that patients pay for that, taxpayers pay for that, 
because insurers get billed. In fact, the No. 1 payer, I 
suspect, of medical device defects is the Federal Government, 
Medicare. And some might argue that we have two cash-for-
clunkers programs, and this is one of them, where the Federal 
Government is paying for defective medical devices.
    Senator Hagan. Well, I think we're all concerned about cost 
and cost containment. And I think that that's a very big issue.
    Yes, Mr. Hutt.
    Mr. Hutt. Senator, there is a provision, in the Medical 
Device Amendments of 1976, that authorizes FDA to order the 
company to pay for a defective device, and the requirement of 
explanting it.
    Senator Hagan. Does the patient, individually, have to 
petition or--how does that process work, for the FDA to----
    Mr. Hutt. The FDA can, on its own initiative, order that, 
or any patient could also ask for it.
    Senator Hagan. You mean like on a recall basis.
    Mr. Hutt. On a petition basis.
    Senator Hagan. That's all, Mr. Chairman.
    Senator Harkin. Well, then I'll start the second round, but 
you can start me again on that 5 minutes.
    You know, I must say for the record, that before Riegel was 
decided, the device manufacturers were subject to tort laws. In 
fact, there were many of them. It wasn't until the Riegel 
decision that the door shut. Am I not correct in that?
    Yes. Yes, yes.
    Mr. Hutt. No, sir. There were a number of court decisions 
before Riegel that held that the claim was preempted.
    Mr. McGarity. There were a number of decisions that held 
otherwise, too.
    Senator Harkin. That held otherwise. So, it was back----
    Mr. McGarity. They were certainly subject----
    Senator Harkin [continuing]. Back to----
    Mr. McGarity [continuing]. To liability, and they knew it 
as they were designing their products.
    Senator Harkin. So, the way I see it--before Riegel, the 
device manufacturers didn't know if they'd win or lose in a 
tort claim, right? Well, let me just say, for the record, that 
the last year before Riegel decision--the last year before--the 
top 25 medical device companies had a net profit of $173 
billion. Net profit. So, they were doing quite well. And they 
were coming up with new devices all the time, even though they 
didn't know whether or not they would be subject to a tort 
claim, or not. So, it doesn't seem like innovation was stifled.
    I must also say, regardless of the difference between drugs 
and devices, we're getting new drugs on the market all the 
time, and they are not preempted from tort claims.
    Mr. Maisel, is it not true that, after Medtronic began 
receiving reports of these manufacturers--you State in your 
statement here, ``within months of initial market release,'' 
they did not recall the lead until more than 3 years later. An 
FDA inspection report issued after recall cited Medtronic for, 
``objectionable conditions for failing to implement appropriate 
corrective and preventive action procedures related to the 
company's investigation of the product anomaly.''
    Now, Dr. Maisel, do you believe the FDA approval process is 
so good that manufacturers of these devices should receive 
immunity when they're faulty or cause injuries? You've been 
there, tell us what it's--tell us about that.
    Dr. Maisel. I think the FDA does an exceptional job of 
evaluating medical devices, and they're extremely thorough. I 
think the biggest issue I have is this concept that 
manufacturer liability stops at device approval. I tried to 
outline, in my testimony, all the responsibilities of a 
manufacturer after the FDA approves their device. They are 
still manufacturing the product. They have to ensure sterility. 
There are many compliance guidelines that they need to follow 
for manufacturing. And it's simply impossible for the FDA to 
monitor individual companies, when there are 15,000 
manufacturers and 100,000 devices that are being produced. And 
so, the idea that only those companies that get caught by the 
FDA are the ones that are going to be held liable, I think, is 
bad policy.
    It's also interesting to note that a U.S. House committee 
report in June 2006 noted the decline in enforcement reports 
and enforcement activity of the FDA, and, in fact, the number 
of warning letters issued by the FDA declined 50 percent 
between 2000 and 2005. Every single office at the FDA had a 
decline, with the device center having the largest decline in 
the number of enforcement letters issued.
    So, the concept that we're going to rely on the FDA 
catching manufacturers doing something wrong in order to 
support consumer liability is a bad policy.
    Senator Harkin. But, Mr. Hutt says that once you make a 
device you can change the device. You can change them. If they 
make a change on a device, does it have to go all the way back 
to the beginning again, and go through the premarket approval?
    Dr. Maisel. The manufacturers can make modifications to 
their device, and they need to let the FDA know about that, and 
submit supplements to their PMA application.
    Senator Harkin. So, it doesn't go right back and go through 
the whole process again.
    Dr. Maisel. Right. Well, that's an excellent point, because 
the Medtronic defibrillator lead in question, that we're 
talking about, was actually a supplement application, it was 
not an original PMA.
    Senator Harkin. I did not know that.
    Dr. Maisel. And that supplement application had no human 
clinical data. So, they made a modification to their lead, it 
was never implanted in a human before it was approved by the 
FDA--or, I should rephrase that--no human data was submitted to 
the FDA to support its approval. The device is approved on the 
basis of bench testing and animal data, and then it goes into 
close to 300,000 patients.
    The question isn't, Why are we here? I mean----
    Senator Harkin. Yes.
    Dr. Maisel [continuing]. It's obvious why we're here. It 
was inevitable that something like this would happen.
    Senator Harkin. OK. Now, you've just told me something I 
did not know. You're saying that a device manufacturer, like 
this Medtronic defibrillator, when it went through the whole 
premarket approval and everything, and it was approved, later 
on they made a change to it, but it didn't have to go back and 
be approved, and they did no human trials?
    Dr. Maisel. It did need to be approved. The original PMA 
was submitted in--around 1992. The supplement that approved the 
Fidelis lead in question was approximately supplement 25 or 30, 
somewhere in that range. And each of those supplements goes 
back to the FDA for consideration. But, supplements often do 
not require human clinical testing. And so, you're now looking 
at a lead 15 years removed from the original PMA, and there's 
not a lot of clinical data that was submitted to support its 
approval.
    So, the idea that that lead is going to function perfectly 
well, and the manufacturer will never be liable for it, seems 
an interesting policy.
    Senator Harkin. Thank you. I'm a minute over.
    Senator.
    Senator Hatch. Well, thank you, Mr. Chairman.
    Do you have any comments about anything that's been said, 
Mr. Hutt, so far?
    Mr. Hutt. A supplemental PMA, which is required for any 
change of any kind, is required to be approved by FDA, using 
the same standards of safety and effectiveness as the original 
PMA, Senator Harkin. I don't want there to be any confusion 
about that.
    FDA looks at the entire PMA, when the supplement is 
submitted, and either approves the device, as changed, as safe 
and effective, or not. So, there is no distinction between the 
original and the supplemental PMA. The FDA, in this instance--
perhaps incorrectly, I do not know the facts--but, what they 
did was, they looked at all the data on safety and 
effectiveness in humans. They concluded that the new lead did 
not require additional human data. Now, I am not a scientist, 
and I cannot say they were right or they were wrong. Dr. 
Maisel, obviously, is more qualified than I to make that 
judgment. But, I don't want there to be any confusion about 
what the process was.
    Senator Hatch. OK.
    Mr. Mulvihill, did you sue, because of the difficulties you 
went through? Or, did you intend to sue?
    Mr. Mulvihill. When this first happened, I did not intend 
to sue. I like my doctors in Davenport, IA.
    Senator Hatch. Right.
    Mr. Mulvihill. I didn't know there'd been a problem with 
the leads. I wasn't told that.
    Senator Hatch. Yes.
    Mr. Mulvihill. In October of the year that I had my 
problem--4 months, 5 months later, whatever it was--a friend 
called me and said, ``Did you see the paper, about Medtronics? 
Fractured leads.''
    I said, ``No,'' I hadn't. I got thinking about it, I looked 
at it, my wife and I discussed it. I didn't do anything for a 
good long time. It was the end of January, first part of 
February, before I contacted a firm and they agreed to take a 
lawsuit.
    Senator Hatch. I see. OK.
    Now, Mr. Roman, I understand you'll be going right from 
this hearing out to the Bonneville Salt Flats, out of my home 
State of Utah, for the Bonneville Speed Week, to try to set 
your fifth land speed record, is that right?
    Mr. Roman. Yes, sir.
    Senator Hatch. I don't want to call you nuts, but----
    [Laughter.]
    Senator Hatch [continuing]. We're very proud of that, and 
we're----
    Mr. Roman. Well, thank you----
    Senator Hatch [continuing]. Very proud of you for being 
with----
    Mr. Roman [continuing]. Very much. And I think one of the 
things we're most proud of is the second opportunity the 
family's been given.
    Senator Hatch. Yes.
    Mr. Roman. And one of the things we've tried to do is 
incorporate the Wounded Warrior project onboard, and the 
military onboard, this year, and--so, they come out to the 
Flats with us, and they're listed--the service logos go down 
the nose of the car. Marines are first--I get a lot of grief 
for this, but my rule is, First in, First to win. I'm not up 
for argument. So, we'll take the U.S. military with us, and 
we'll go set some records.
    Senator Hatch. Well, you're great, I want to wish you all 
the best of luck in your endeavor.
    But, you stated, in your testimony, that the first spinal 
stimulator did not work for you, and the technology from the 
second implanted stimulator pushed the envelope and----
    Mr. Roman. Yes.
    Senator Hatch [continuing]. Was risky. And after 
considering all those factors, can you explain to us what made 
you still decide to get the second device? And have you had any 
regrets since you got the second device?
    Mr. Roman. It's plain and simple, sir. Family. I wanted my 
family back. I wanted a chance at a normal life. And, you know, 
the original trial didn't go well with the first spinal cord 
stimulator. Honestly, sir, it was like being electrocuted. I 
felt as if it--from my rectum to the top of my head, it felt--
just pounding. And for me, it didn't work. Go out, 5 years 
later, the morphine levels are now up to 300 milligrams of 
morphine a day, I'm hallucinating, suicidal thoughts are pretty 
constant. And for me, it was desperation.
    Senator Hatch. A matter of quality of life.
    Mr. Roman. I just had nowhere else to turn.
    Senator Hatch. Yes.
    Mr. Roman. The remarkable part is, during that time, how 
the technology had changed. And it was like night and day. When 
they turned this system on, because it was based on the 
cochlear implant technology, it was very smooth, and I could 
steer it and control it a lot more than the pounding 
electrocution I felt in the initial system.
    Senator Hatch  I'm really glad you did what you did, and 
I'm glad you've had that result.
    Mr. Roman. Thank you.
    Senator Hatch. Mr. McGarity, I have a lot of respect for 
you. You've testified before the Judiciary Committee a number 
of times. You're clearly a very bright guy. And as you can see, 
you and Mr. Hutt differ----
    Mr. McGarity. Yes.
    Senator Hatch [continuing]. Quite a bit. And I'm as 
concerned about these issues as you are. On the other hand, I 
am concerned about having the best medical devices we can find. 
And I do know there's a balance here that has to occur.
    I don't think any of us want somebody to be hurt by a 
medical device, and to not be compensated if it's truly the 
fault of the company, or anybody else for that matter. It's a 
tough area, and these are tough, tough decisions.
    My time is up. I was going to ask you a whale of a 
question, but my----
    [Laughter.]
    Senator Hatch [continuing]. No, that's fine. I just wanted 
to mention that I have high respect for you.
    Mr. McGarity. Well, thank you.
    Senator Harkin. Well, I have one other thing that I'd like 
to pursue. And I'm just thinking about this. I am informed--the 
FDA does not have subpoena power, does it?
    Mr. McGarity. No----
    Mr. Hutt. No, it does not.
    Senator Harkin. So, let's just think this through a second. 
If a device manufacturer knows, now, under Riegel, that they 
are not subject to tort lawsuits, therefore they're not subject 
to discovery that would go on in a lawsuit, and if FDA doesn't 
have subpoena power, and let's say that--I was thinking about 
this, because there's a case here, Warner Lambert v. Kent, 
which--you probably ought to know about it. It says, 
``Manufacturers who commit fraud on the FDA are not immune from 
lawsuits.''
    Well, OK, let's say that a device manufacturer doesn't 
submit all the information to the FDA. The FDA does not have 
subpoena power. Therefore, they approve it, goes on the market, 
people are injured, there's a recall. But, because they cannot 
sue, you cannot get discovery to find out whether or not they 
ever even committed fraud on the FDA.
    So, I hope I've made myself clear. If a device manufacturer 
commits fraud on the FDA, puts a device out there, and injures 
people--but, they cannot sue and can't get discovery to get at 
these documents, then you will never know whether or not they 
committed fraud on the FDA or not. What's wrong with that line 
of reasoning?
    Mr. Hutt. Well, first, Senator Harkin, you asked me a very, 
sort of, specific question. FDA does not have subpoena power, 
but any FDA inspector has the authority to obtain records 
inspection by visiting the company, and they can demand any 
form of record relating to information on safety and 
effectiveness in the files of the company. They have 100-
percent authority to obtain that.
    Moreover--and this is extremely important--it is a 
violation, and regarded by FDA as the most serious violation, 
if a company fails to submit all the relevant safety and 
effectiveness information as part of their PMA.
    And I can assure you, when I was chief counsel, the one 
area that I always considered criminal sanctions was the 
failure of a company to report things they were required to 
report, either with the original application or after a drug or 
device was marketed, when there are also reporting 
requirements.
    FDA's criminal authority is the strongest criminal 
authority under any Federal statute. It does not require 
knowledge or intent by the company or the individual. It is 
what we call ``strict criminal liability,'' and FDA does employ 
that----
    Senator Harkin. Right.
    Mr. Hutt [continuing]. Whenever there is a proof that 
someone violated those principles of reporting.
    Senator Harkin. Mr. Maisel, could you address yourself to 
this?
    Dr. Maisel. Sure. I'd just like to--I will read a quote 
from the FDA inspection report. It's page 13 of a 25-page 
report. And this is the FDA, ``When we asked to see some in-
process field product inspection reports, we were told they 
were not able to let us view them.'' That's the FDA on the 
Medtronic issue.
    I think one could----
    Senator Harkin. So, Mr. Hutt, how can--I'm getting----
    Mr. Hutt. Senator----
    Senator Harkin [continuing]. I'm getting two different 
things coming to me----
    Mr. Hutt. Well----
    Senator Harkin [continuing]. And I can't handle this.
    Mr. Hutt. The company may----
    [Laughter.]
    Mr. Hutt [continuing]. The company may have said that they 
didn't want to give it to FDA, but if they didn't give it to 
it, that's a violation of law. Period. Full stop.
    I think the point--or, the fact----
    Senator Harkin. So, my question about--if they wouldn't 
give them the information, why didn't the FDA demand it, or--
what could they have done?
    Mr. Hutt. Well, FDA could demand it, and if the company 
refused, FDA could bring a lawsuit, yes.
    Senator Harkin. A lawsuit.
    Mr. Hutt. Yes. They could penalize the company. They could 
seize the offending illegal products, they could enjoin the 
company against future violations, they could bring a criminal 
prosecution----
    Senator Harkin. So, you're saying that on this case, Dr. 
Maisel said----
    Mr. Hutt. Yes.
    Senator Harkin [continuing]. That it's the FDA's fault that 
they didn't get this.
    Mr. Hutt. Yes, that is true. Now, Dr. Maisel----
    Senator Harkin. Hmm.
    Mr. Hutt [continuing]. Made a point earlier, that he and I 
are in complete agreement with.
    Senator Harkin. Wait.
    Mr. Hutt. FDA needs adequate appropriations. The 
statistics, for example, that he----
    Senator Harkin. We're not going to give me that.
    Mr. Hutt. Yes. The statistics that he quoted were from a 
few years ago, of the downturn in FDA inspections and other 
forms of enforcement action. But, in the last 2 years, FDA 
appropriations have increased by $900 million, from $1.4- to 
$2.3 million, and it was precisely because the FDA Science 
Board report of late 2007 said that the agency was being 
starved to death.
    Senator Harkin. OK.
    Mr. Hutt. Now they've got the funds.
    Senator Harkin. I deal with FDA a lot on another hat I 
wear, on Agriculture, and, I'll tell you, they don't have the 
resources to monitor all the things that we ask them to 
monitor. But, that's for----
    Mr. Hutt. Not everything, I agree.
    Senator Harkin. That's for another discussion.
    Do you have any other----
    Dr. Maisel. I did want to----
    Senator Harkin. On this issue. On that--see, my point was, 
whether or not you could ever get to the bottom of whether or 
not a company gave all the information to the FDA in the first 
place or not, and if you don't have a lawsuit--you understand 
what my question was.
    Dr. Maisel. I do, and I think you've well summarized the 
issue. I'm not a lawyer, but the FDA does not possess the 
authority to, ``demand'' documents, other than to ask for them 
or to----
    Senator Harkin. But, if they don't, then Mr. Hutt says they 
should sue them.
    Dr. Maisel. Yes.
    Senator Harkin. That's as I understand.
    Dr. Maisel. But, I mean, that's ``back to the future.'' 
That's where we were before the Medical Device Amendments, back 
in the 1950s and the 1960s, when the FDA regulated medical 
devices by trying to take them to court one at a time, and 
spent a lot of money, and it was very inefficient.
    Senator Harkin. I see. So, you're saying that it would 
almost be, I wouldn't say ``next to impossible'', since you've 
got 15,000 manufacturers out there--is that what you're saying?
    Voice. Correct.
    Voice. Yes.
    Senator Harkin. That it would be hard for them to--if they 
demanded, let's say, 50 of them, or 100 of them, would they 
have the personnel, then, to go and lawsuit every single one of 
them, at FDA?
    Dr. Maisel. I think you know the answer to your question.
    Senator Harkin. Yes. And I don't know where they'd get the 
money to hire these high-price lawyers from these big law 
firms.
    [Laughter.]
    I'm just kidding.
    Mr. Hutt. Senator, in my experience, it is a rare event 
when a company declines to obey the law and provide the 
documents that FDA is entitled to.
    It is a very rare event.
    Senator Harkin. I would agree with that right now. But, 
under Riegel, if there is--if they can say, ``My gosh, we'll 
never have to give those documents up. It would be a rare 
instance for FDA to ever take us to court to sue. And Mr. 
Mulvihill can't sue us now. And his lawyers can't get discovery 
to get those documents.'' Hey, you know?
    Mr. Hutt. But, Senator, their lawyers are going to tell 
them, ``If we don't produce these documents, we can go to jail. 
The CEO can go to jail.'' That's who FDA brings criminal 
prosecution against, not some low-level people.
    There were two U.S. Supreme Court decisions, one in 1944, 
one in 1975, upholding FDA authority to bring criminal 
prosecution against the highest corporate officials because 
they are ultimately responsible for the actions of the company.
    Senator Harkin. Mr. McGarity, I went over my time, but I'll 
give Senator Hatch----
    Mr. McGarity. Well, just a couple of points. One is, yes, 
that might happen, but it doesn't. You don't see that many 
criminal prosecutions. Hopefully, it's because it doesn't 
happen that often. But, the fact of the matter is--the 
underlying fact of the matter is that, when we get this 
information about what was going on in the drug company files 
and the device manufacturers files, it's not because FDA 
inspectors got it, it's because a plaintiff has sued and we've 
had discovery, we've had depositions taken, we've had, 
sometimes, whistle blowers within the company come forward with 
that information. But, it's not because FDA turned it up.
    Senator Hatch. Well, let me just say this. I've had 
extensive experience with the FDA, and they don't miss much. 
And the constant complaint is they are over-regulatory, if 
anything. Now, I don't know the instance with the--I've heard 
that same point that you've made, Dr. Maisel, about Medtronics. 
But, if FDA wanted those materials, they'd have gotten them. 
And there must--I don't know what the reason was behind it, 
but--maybe they did, in the end. I don't know.
    But, one concern that I and others have with this 
legislation deals with the mission of the FDA with regard to 
medical devices. Under the current regulatory system, the 
device manufacturers have to go through an extensive review 
process and analysis from top experts of the FDA and elsewhere. 
They have to strictly adhere to the FDA's labeling and 
marketing requirements, and even after the device is on the 
market, they have to report back to the FDA on the 
implementation and use of the device, including any adverse 
events.
    So, what we're dealing with is a bar that is already set 
exceptionally high. Now, this legislation, it appears, would 
allow panels of randomly selected jurors, with no expertise at 
all in the field or any aspect of it, to overrule this entire 
process and create whole new standards of suitability and 
market readiness for medical devices.
    Now, let me ask you this, Mr. Hutt, does this legislation 
not suggest that a jury of 12 laymen is better able to 
determine the future use and availability of these highly 
advanced medical devices than the team of highly trained 
experts at the FDA who approve these devices? And if so, what 
could be the justification for that?
    Mr. Hutt. Well, that is precisely my concern, Senator 
Hatch. FDA is not perfect, but certainly a jury is going to be 
less perfect in determining what is a safe and effective 
medical device.
    Senator Harkin. Well, the ultimate goal is to get the very 
best devices we can to really help people like Mr. Mulvihill, 
like Mr. Roman, in ways that they've got to be helped. And 
we've kind of split the baby here. Is that a fair appraisal?
    Mr. Hutt. I agree with you. One of the best parts of the 
Medical Device Amendments of 1976 was an innovative provision, 
under which advisory committees would be convened for every PMA 
device----
    Senator Hatch. Yes.
    Mr. Hutt [continuing]. To make certain that outside 
independent experts agreed with FDA that the device is safe and 
effective. And Dr. Maisel, who has chaired one of those 
committees and has obviously spent a lot of personal time, for 
which I think all of us should thank him--it's that kind of 
work that makes the system work--that's the way that FDA 
confirms whether a device is safe and effective, and has 
sufficient data to go on the market.
    Senator Hatch. OK.
    Mr. McGarity, in part of your written testimony you argued 
that the common law serves an important deterrence function. 
And, to some extent, I suppose I agree with that. Now, 
specifically, you stated that,

          ``To the extent that the anticipated compensatory and 
        punitive damage awards imposed by the civil justice 
        system are greater than the cost of avoiding the harm, 
        a rational company will take protective action to 
        prevent causing damage in the future.''

    Now, I see some problems with the application of this 
reasoning to highly regulated areas like medical devices. First 
of all, FDA regulations make unilateral changes in labeling, 
design, or manufacturing processes virtually impossible. So, 
while it's a convenience to argue that a device manufacturer 
would simply and quickly update their product whenever they 
hear about a possible risk, the current system does not allow 
for this. And for good reason, because the initial process is 
so intensive, and sometimes intrusive, it only makes sense that 
any subsequent changes to a device receive similar scrutiny.
    But, even if the law allowed for changes to be made so 
easily, how could a manufacturer ever be confident that the 
action they took would be sufficient to avoid a plaintiff suit?
    One thing we can learn about the trial bar is that there is 
no shortage of legal theories on which to file a lawsuit. In 
your view, is there no benefit to offering limited protection 
for manufacturers of such highly regulated products to ensure 
the advancement and availability of these lifesaving products?
    Mr. McGarity. I think that's a very good question, Senator 
Hatch. And the answer, I think, goes to the nature of the 
common law. The negligence standard--and you've alluded to it 
on several occasions this afternoon--is fairly uniform across 
the country. The standard of defective product. There's some 
minor variations in the States, but it is a standard of care 
that we ask a drug or device manufacturer to come up to.
    Yes, when the manufacturer anticipates that they might be 
held to violate that standard of care in the future, one hopes 
that that affects their decision, particularly once the device 
is out there on the market.
    Now, the fact is true that they have to go back to FDA for 
approval if they want to change their device. It is also the 
case, particularly when it comes to the label or the warning on 
the device, that when you go back to FDA and say, ``Look, I've 
discovered a problem with this device. It's not as safe as it 
needs to be, as I've discovered from reports, or whatever, that 
have come to me, and I want to fix that and make it safer,'' 
FDA doesn't get in their way. FDA doesn't say, ``Oh, well, we 
wouldn't want you to make it safer if that's going to take too 
much time or too much effort.'' They tend to not get in the way 
of safety-enhancing approvals.
    But, you're right, they do have to go back to FDA, at some 
point, to get that approval before it actually changes things.
    But, when a jury holds a defendant liable, they're not 
issuing an injunction, saying that, ``You must do things 
differently.'' They are simply holding the defendant liable in 
that particular case, and the defendant then takes that message 
and does with it as the defendant thinks proper or appropriate.
    Senator Hatch. Mr. Hutt.
    Mr. Hutt. Well, in most instances, product liability 
lawsuits are resolved in the courts long after the safety issue 
is over. Because what happens is--through various mechanisms--
first, doctors report problems with medical devices; they 
report it directly to FDA. Second, some doctors or patients 
report it directly to the company. As soon as those reports 
come in, any intelligent company starts to say, ``What do we 
need to do? Is this inherent in the product?'' like Mr. Roman 
was talking about with his first-generation product, that it's 
just the way it is; science and technology can't improve it any 
better? But, if there is a way of resolving it, that's done 
immediately. And FDA and the industry will cooperate. I agree 
with Tom on that.
    Senator Hatch. OK.
    Mr. Hutt. But, the point is that all that occurs before any 
product liability lawsuit arises. The product liability lawsuit 
punishes the company, it doesn't increase the safety or 
effectiveness of a single device.
    Senator Hatch. Well, one last thing. There are a lot of 
small companies that come up with some very, very creative 
products. What effect would it have on that innovative process? 
That's what I'm concerned about. There are huge, big companies 
that might be able to withstand some of this stuff, but the 
innovation and the entrepreneurial makeup of our country--it's 
generally the smaller companies that come up with these 
devices, and I don't want that stultified.
    Mr. Hutt. Yes, sir. I agree.
    Senator Hatch. OK.
    Well, Mr. Chairman, it's been a very interesting hearing. 
And I want to compliment each of you, as witnesses. Each of you 
has contributed a great deal to us here today. I wish I had, 
really, totally definitive answers to solve the problem of the 
three witnesses on our left, and yet still be able to have the 
devices for people like you, Mr. Roman, who really had a 
miserable life until you were able to get that device and get 
it to work.
    Mr. Roman. Second chances come in all shapes.
    Senator Harkin. Well, I would just say that when the top 25 
medical device companies had a net profit of $173 billion, 
before the Riegel decision, I don't think innovation was 
stifled at all at that time.
    Senator Hatch. Well, for the small companies, that's for 
sure.
    Senator Harkin. Well, they made a lot of money, Orrin.
    [Laughter.]
    Senator Hatch. Yes, the 25 companies--there are thousands 
and thousands of companies, many of them are very small. That's 
where a lot of the innovative ideas come from--they'd be 
totally stifled if we went to a total tort system.
    Senator Harkin. Well, then I'll say this for the record. I 
don't----
    Senator Hatch. I guarantee that.
    Senator Harkin [continuing]. I don't care how small they 
are, they'd better meet the most stringent standards of safety 
and efficacy. I don't care whether it's a drug or a device.
    Senator Hatch. I agree with that.
    Senator Harkin. And if they don't adhere to that, and if it 
injures a person out there--now, again, it has this whole idea 
of preemption. And as a lawyer, I've looked at this a lot in 
the past, and it just seems to me that there was always, I 
thought, a presumption against preemption in the law. A 
presumption against preemption. And, quite frankly, it's--my 
reading of the little bit of the history of this is that the 
FDA's position, until the early 2000s, was basically a 
presumption against preemption. But, that all kind of changed. 
And I think it's up for us, as a legislative body, to decide.
    Senator Hatch. Well, to borrow your words, if they don't 
adhere to that, they may have some liability under current law.
    Senator Harkin. Under criminal law.
    Senator Hatch. Both.
    Senator Harkin. Under criminal law.
    Senator Hatch. Both tort and current law. Depends.
    Senator Harkin. I don't know where--if it preempted--how 
are you going to get into court if you're preempted?
    Senator Hatch. Well, if they don't abide by the rules that 
the FDA sets up, they may have some real difficulties.
    Am I wrong, Mr. Hutt?
    Mr. Hutt. You are right.
    Senator Harkin. Well----
    Senator Hatch. I know I'm right.
    [Laughter.]
    Senator Harkin. But, the problem is, without discovery and 
stuff, you won't be able to get that information. And that is 
the----
    Senator Hatch. No, they'd be able to get--have the----
    Senator Harkin. That's the conundrum. That's the conundrum 
that we have here, I think, with this issue. And jury can say, 
``Well, the FDA can go after them criminally,'' and perhaps get 
that, but you just can't do that on every one. And the risks, 
you know--companies take risks, investors make risks. They say, 
``Well, the odds are, maybe, 10,000 to one that you'll never 
have to do this. Well, that's pretty good odds. I think I'll 
take those odds, and I'll make a lot of money off that 
device.''
    Senator Hatch. Well, thank you all for coming. We really 
appreciate----
    Senator Harkin. Well, just a minute, I haven't adjourned 
this hearing yet.
    [Laughter.]
    Senator Hatch. I wasn't----
    Senator Harkin. And I do have the gavel.
    [Laughter.]
    Senator Hatch. I was just trying to leave, that's all, in a 
gracious way.
    Senator Harkin. All right, Orrin.
    I just wanted to ask, for the record--I have two things I 
want to put in the record. One is an editorial from New England 
Journal of Medicine. When did this article appear? Oh, March 
2009, New England Journal of Medicine, in which they said 
that--I won't read the whole thing:

          ``As the law now stands, failure-to-warn and design-
        defect lawsuits are preempted for medical devices, but 
        not for drugs. This perplexing State of affairs defies 
        all logic. To address the inconsistency and to improve 
        the safety of medical products''----

they went on to talk about the bill. And they said,

          ``Patients and physicians deserve to be fully 
        informed about the benefits and risks of medical 
        devices, and the companies making the devices should be 
        held accountable if they fail to achieve this standard. 
        We urge Congress to swiftly pass this legislation.''

That's the New England Journal of Medicine.
    I have another article, by Margaret Jane Porter, former 
chief counsel of the Food and Drug Administration, and I just 
have one quote from that. She said that,

          ``Although the agency,''

meaning the FDA,

          ``had not formally expressed its position on the 
        precise issue,''

of preemption,

          ``it is clear, from the views it expressed in many 
        other contexts, that it did not believe that State 
        court claims were preempted under the Medical Devices 
        Act, MDA. Indeed this was the prevailing view in the 
        legal community into the early 1990s. No arguments were 
        put forward that there should be preemptions of these 
        claims.''

    So, I'd just ask consent that those two articles appear in 
the record.
    Oh, I'm sorry, I'd like to also submit for the record a 9-
signature letter from victims of faulty medical devices also 
encouraging us to pass the Medical Device Safety Act.
    [The information referred to may be found in Additional 
Materials--Letters of Support]
    Senator Harkin. And I would just say, off--if--you know, if 
I thought, for any amount of time, that this would really 
stifle innovation--I happen to be for innovation, I happen to 
be for new devices, I happen to think that these are good 
things, but I also believe in holding people accountable unto 
the strictest standards of safety and manufacture, and I am 
just concerned about the FDA. I've been concerned about the FDA 
for a long time. I have a love-hate relationship with that FDA, 
I can tell you that. I think sometimes they do good things, 
other times they don't do what they should be doing. And I 
think, more often than not, it's because we have not given them 
the resources with which to do it.
    And I kind of interjected, I think, when Mr. Hutt was 
speaking, I said, ``Well, we're not going to do that, give them 
the resources.'' I don't mean that we don't want to give them. 
We should give them the resources. We've asked them to do a 
myriad of things, and yet we don't give them the resources to 
carry it out. So, count me as one that also believes that we 
ought to do more, in terms of giving the FDA those resources. 
But, I just think, under the present budget situations and 
things like that, it's probably not going to happen.
    Did anyone have any final comment before I go? I think 
we're now starting to vote, and I've got to go vote. Did anyone 
have any closing comment?
    [No response.]
    You're going to set a new land speed record?
    Mr. Roman. Yes, sirs. Friday and Saturday.
    Senator Harkin. So, you're going to break the sound 
barrier.
    Mr. Roman. Not the sound barrier. In our class, top speed's 
about 170 miles an hour.
    Senator Harkin. Oh, I don't know what class this is----
    Mr. Roman. Different cars run at different records. So, 
our----
    Senator Harkin. Oh.
    Mr. Roman [continuing]. Our class record's about 170, we're 
shooting for.
    Senator Harkin. Oh, because I thought, my gosh, would--
somebody broke the sound barrier on----
    Mr. Roman. Someone actually did break the sound barrier.
    Senator Harkin. Yes.
    Mr. Roman. The new record is 746 miles an hour.
    Senator Harkin. Oh. Well, you're going to----
    Mr. Roman. Everyone's got to have goals, Senators, you 
know.
    [Laughter.]
    You started out as a councilman, you moved up. Same type of 
thing.
    Senator Harkin. Exactly.
    Well, good luck to you out there.
    Mr. Roman. Thank you very much, sir.
    Senator Harkin. Thank you all very much.
    The record will be kept open, for 10 days, for submission 
of other documents.
    Thank you very much.
    [Additional material follows.]

                          ADDITIONAL MATERIAL

                           LETTERS OF SUPPORT
                    American Bar Association (ABA),
                                    Chicago, IL 60654-7598,
                                                 December 29, 2008.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Mr. Chairman: On behalf of the American Bar Association and 
its over 400,000 members, I write to express support for S. 3398, the 
``Medical Device Safety Act'' that you introduced in the 110th Congress 
and to urge you to reintroduce this legislation in the next Congress.
    Earlier this year, the Supreme Court in Riegel v. Medtronic ruled 
that a product liability lawsuit filed against Medtronic in a State 
court was preempted because the device had received approval from the 
U.S. Food and Drug Administration (FDA). It found that the Medical 
Devices Amendments of 1976 allow the FDA to preempt the State liability 
laws for medical devices. S. 3398 would address that decision by 
allowing injured patients to hold negligent medical device 
manufacturers liable for damages in State courts under State laws for 
product related deaths and injuries, as had been the case prior to the 
holding in the Riegel case. S. 3398 recognizes the value of over 30 
years of experience that the United States has had in utilizing both 
FDA regulations and State tort laws to ensure the safety of medical 
devices.
    State product liability law holds manufacturers accountable for 
injuries caused by their products when they are negligent or 
irresponsible. These laws permit an injured consumer to be compensated 
by a manufacturer found to be negligent. In addition, a manufacturer 
has a financial incentive to be vigilant in making its product as safe 
as possible and has an incentive to quickly recall a product from the 
market if it discovers that its product is dangerous even if the 
product or its label has been approved by the FDA.
    S. 3398 is consistent with ABA policy supporting the continued 
right of the States and territories to regulate product liability law 
with discrete exceptions. For example, we support enactment of narrowly 
drawn Federal legislation on compensation that addresses the issues of 
liability and damages with respect to claims arising out of 
occupational diseases (such as asbestosis) with long latency periods in 
certain cases. In addition, we support Federal legislation allocating 
product liability risks between the Federal Government and its 
contractors.
    The ABA is committed to sustaining a legal system in America that 
is not only effective and just, but also one that protects the rights 
of consumers and manufacturers, plaintiffs and defendants. We 
continually work on many fronts to develop recommendations and pursue 
projects aimed at improving our civil justice systems at both the 
Federal and State level.
    We look forward to working with you toward enactment of this very 
important legislation in the 111th Congress.
            Sincerely,
                                       H. Thomas Wells, Jr.
                                 ______
                                 
               The New England Journal of Medicine,
                                         February 27, 2009.
Senator Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Senator Kennedy: The editors of the New England Journal of 
Medicine have read the ``Medical Device Safety Act of 2009,'' which is 
designed to strengthen product safety in the medical device industry, 
and we endorse it. We think this is critical legislation that will 
protect patients and help ensure the safety of medical devices in the 
United States.
            Sincerely yours,
                                   Jeffrey M. Drazen, M.D.,
                                                   Editor-in-Chief.

                                  Gregory D. Curfman, M.D.,
                                                  Executive Editor.

                                  Stephen Morrissey, Ph.D.,
                                                   Managing Editor.
                                 ______
                                 
             The New England Journal of Medicine--Editorial
                 The Medical Device Safety Act of 2009

(By Gregory D. Curfman, M.D., Stephen Morrissey, Ph.D., and Jeffrey M. 
                             Drazen, M.D.)

    Patient safety is a national concern. Major stakeholders throughout 
our health care system agree that every step must be taken to ensure 
that medical interventions, used with the intention of improving 
patients' health, are as safe as possible. But every medical 
intervention has benefits and risks. Patient safety can be ensured only 
when the makers of drugs and devices fully and openly disclose both the 
benefits and the potential adverse effects associated with an 
intervention. As the Institute of Medicine has made clear, medical 
devices and drugs need to be assessed for risks and benefits throughout 
their life cycles.\1\
    Unfortunately, one major stakeholder, the medical-device industry, 
has been shielded from the potential consequences of failing to 
adequately disclose risks. Just over a year ago, the U.S. Supreme 
Court, in Riegel v. Medtronic,\2\ ruled that a medical-device 
manufacturer cannot be sued under State law by patients alleging harm 
from a device that received marketing approval from the Food and Drug 
Administration (FDA). Until that ruling by the Court the possibility of 
litigation for ``failure to warn or design defect served as a strong 
inducement for device companies to be vigilant about the safety of 
their products.
    Since the Supreme Court ruling in Riegel, thousands of lawsuits 
against medical-device manufacturers have been tossed out of court by 
judges following the Court's lead in deeming such lawsuits to be 
preempted. We contend that preemption will result in medical devices 
that are less safe for the American people.
    In the largest recent example, Judge Richard Kyle dismissed more 
than 1,000 cases filed against Medtronic in U.S. District Court in 
Minnesota after the failure of it's Sprint Fidelis implantable 
cardioverter-defibrillator lead, which was with drawn from the market 
in 2007. The lead was prone to fracture and it sometimes failed to 
deliver an appropriate shock and sometimes delivered multiple 
unnecessary shocks. Although Kyle stated that ``the court recognizes 
that at least some plaintiffs have suffered injuries from using Sprint 
Fidelis leads, and the court is not unsympathetic to their plight,'' he 
ruled that he was compelled on the basis of the Riegel decision to 
dismiss the suits, leaving injured patients without the possibility of 
redress.\3\
    And there may be many such patients: more than a quarter of a 
million Sprint Fidelis leads were implanted worldwide, 150,000 in the 
United States. The FDA has logged 2,200 reports of serious injuries 
from this lead, and last week Medtronic released an updated mortality 
report of 13 deaths; the company considers to have been related to the 
Sprint Fidelis.\4\ \5\
    The Supreme Court's ruling in Riegel was based not on 
considerations of what is best for the health of the public, but rather 
on a point of statutory law. The Medical Device Amendments of 1976 
(MDA) to the Food, Drug, and Cosmetic Act provide that a State may not 
``establish with respect to a device intended for human use any 
requirement . . . which is different from, or in addition to, any 
requirement applicable'' to a medical device under Federal law.\6\ The 
Court, in an 8-to-1 decision, interpreted this clause as demonstrating 
Congress's explicit intention to preempt State-law damages suits. The 
FDA, which until 2003 opposed preemption, in that year inexplicably did 
an about-face and posited that its approval of a device should be 
regarded as the final word and should immunize companies against legal 
liability. With respect to drugs, the FDA announced a broad pro-
preemption position in 2006.
    In marked contrast to the Riegel decision and to the FDA's new 
position on preemption, a Supreme Court ruling this month in a drug 
preemption case, Wyeth v. Levine,\7\ dismissed Wyeth's argument that 
failure-to-warn suits against drug companies are preempted by FDA 
approval of the drug's label. The Food, Drug, and Cosmetic Act contains 
no explicit preemption clause with regard to prescription drugs. The 
drug company argued that even though preemption is not specifically 
mentioned in the Act, it is ``implied'' by virtue of the supremacy 
clause of Article IV of the U.S. Constitution, which states that 
Federal law is supreme to State law. In its 6-to-3 ruling, the Supreme 
Court rejected this argument and found, as well, that the position put 
forth by the FDA in 2006 ``does not merit deference.''
    As the law now stands, failure-to-warn and design-defect lawsuits 
are preempted for medical devices but not for drugs. This perplexing 
state of affairs defies all logic. To address the inconsistency and to 
improve the safety of medical products, Congressmen Henry Waxman (D-
CA), chair of the House Committee on Energy and Commerce, and Frank 
Pallone (D-NJ), chair of the Health Subcommittee, recently introduced 
the Medical Device Safety Act.\8\ This bill, along with a companion 
bill introduced by Senators Edward Kennedy (D-MA) and Patrick Leahy (D-
VT), would nullify the Court's ruling in Riegel by adding language to 
the Medical Device Amendments to make explicit that the law does not 
preempt suits against device companies, and thereby to place medical 
devices and drugs on a level playing field with respect to patient 
lawsuits.
    Patients and physicians deserve to be fully informed about the 
benefits and risks of medical devices, and the companies making the 
devices should be held accountable if they fail to achieve this 
standard. We urge Congress to swiftly pass this legislation and to 
allow lawsuits by injured patients, which have been an important part 
of the regulatory framework and very effective in keeping medical 
devices safe, to proceed in the courts. The critical issue of 
preemption, which directly affects the disclosure of risks and thus the 
safety of the Nation's supply of medical devices and drugs, should 
properly be decided by officials elected by the people, with whom the 
responsibility for the health of the public rightfully resides.
                               References
    1. Challenges for the FDA: the future of drug safety--workshop 
summary. Washington, DC: National Academies Press, 1007.
    2. Riegel v. Medtronic, 552 U.S. 2 (2008).
    3. Kyle R.H. In re Medtronic, Inc. Sprint Fidelis leads products 
liability litigation. Multidistrict litigation no. 08-1905 (RHK/JSM). 
Memorandum opinion and order. U.S. District Court of Minnesota. January 
5, 2009. (Accessed March 17, 2009, at http://www.mnd.uscourts.gov/MDL-
Fidelis/Orders/20091090105-08md1905ord
.pdf.)
    4. Meier B. Medtronic links device for heart to 13 deaths. New York 
Times. March 13, 2009.
    5. Medtronic letter to physicians: Sprint Fidelis model 6949 lead 
performance. (Accessed March 17, 2009, at http://www.medtronic.com/
product-advisories/physician/sprint-fidelis/PHYSLETTER-2009-03-13.htm.)
    6. Medical Device Amendments of 1976, codified at 21 U.S.C. 
160(k)(a).
    7. Wyeth v. Levine, 555 U.S. 2 (2009).
    8. Committee on Energy and Commerce. Health leaders introduce 
legislation reversing Supreme Court's medical device decision. 
(Accessed March 17, 2009, at http://energycommerce.house.gov/
index.php?option=com_content&task=view&id=
1518.)
                                 ______
                                 
            The Lohr Decision: FDA Perspective and Position

                  (Submitted by Margaret Jane Porter)*

    I appreciate the opportunity to participate in this meeting. 
Earlier versions of the program were billed as an opportunity to learn 
how to help reduce manufacturers' product liability exposure. FDA was 
not interested in providing such advice; the program was revised to 
offer an opportunity to understand product liability exposure. I am 
glad to help put the case of Medtronic v. Lohr \1\ in context from the 
agency's perspective, and to explain why the agency took the position 
it did and why the agency regards the Court's holding as an important 
victory for consumer protection.
---------------------------------------------------------------------------
    * Ms. Porter is Chief Counsel, Food and Drug Administration. This 
article is an updated version of a speech that was presented at FDLI's 
seminar ``After the Lohr Decision: What You Can Learn to Help Reduce 
Your Organization's Exposure to Product Liability,'' Washington, DC 
(Oct. 8, 1996). Beverly Rothstein of the Office of the Chief Counsel 
contributed substantially to these remarks.
    \1\ 116 S. Ct. 2240 (1996).
---------------------------------------------------------------------------
    The most important theme of this article is that the agency's 
position in Lohr and the Court's decision are the logical extensions of 
the agency's long-standing presumption against preemption in 
implementing section 521 of the Federal Food, Drug, and Cosmetic Act 
(FDCA).\2\ The suggestion, therefore, that Lohr represents a 
significant shift is not reflective of the agency's history and 
practice. Rather, the Lohr decision is an important affirmation of the 
agency's historical approach. This discussion should be an opportunity 
for interested parties to identify areas in which more guidance would 
be helpful as the agency plans its implementation.
---------------------------------------------------------------------------
    \2\ Pub. L. No. 75-717,  521, 52 Stat. 1040 (1938) (codified as 
amended 21 U.S.C.  360k (1994)).
---------------------------------------------------------------------------
    Since the passage of the Medical Device Amendments of 1976 
(MDA),\3\ it has been the agency's position that the scope of 
preemption under section 521 should be interpreted narrowly, with a 
presumption against preemption. This is true particularly when the 
effect of preemption would be to override a State scheme offering 
greater consumer protection than that currently afforded under the 
FDCA. Consequently, FDA's position always has been that State and local 
requirements are not preempted and may be enforced until FDA 
establishes specific counterpart requirements applicable to a 
particular device or class of devices.
---------------------------------------------------------------------------
    \3\ Pub.L. No. 94-295, 90 Stat. 539 (codified as amended in 
scattered sections of 21 U.S.C.).
---------------------------------------------------------------------------
    FDA's narrow construction of the preemptive effect of section 521 
is reflected in the multiple rulemakings under that section, including 
part 808, the regulation interpreting section 521 that was issued in 
1978,\4\ and several regulations granting or denying exemptions from 
preemption for various State and local requirements. Various portions 
of these regulations were cited by the Court in Lohr. For example, part 
808 provides that State or local requirements that are substantially 
identical to an FDA requirement are not ``different from'' the FDA 
requirement and, therefore, are not preempted.\5\ In addition, 
preemption is limited to instances where there are specific FDA 
requirements applicable to a particular device or class of devices. 
Even where the agency has established a detailed, comprehensive scheme 
regulating a particular kind of device, such as it has with hearing 
aids,\6\ not all facets of State regulation of that device are 
preempted. Instead, only different or additional State or local 
requirements of the very type established by FDA are preempted. 
Finally, section 521 does not preempt State or local requirements of 
general applicability that relate either to products other than devices 
or to unfair trade practices not limited to devices.
---------------------------------------------------------------------------
    \4\ See 21 CFR pt. 808 (1996).
    \5\ Id.  808.1(d).
    \6\ 21 CFR  801.420.
---------------------------------------------------------------------------
    Although FDA did not have occasion to address the precise issue of 
whether section 521 preempts State tort claims before that issue was 
litigated in private lawsuits, the agency did consider related 
questions. For example, in March 1984, the agency issued an advisory 
opinion stating that section 521 does not preempt the application of 
State law injunctive remedies to IUDs inserted in women prior to the 
enactment of the MDA.\7\ With the provisions of part 808 as a basis, 
the agency concluded that there was no indication in the legislative 
history that Congress intended that the section preempt State or local 
requirements respecting general enforcement, including available legal 
remedies, or State or local statutes that only incidentally apply to 
devices.\8\ Thus, in 1984 the agency's formal opinion was that rules or 
requirements established by States to govern the legal remedies 
available under State judicial systems are not ``requirements with 
respect to a device'' within the meaning of section 521.\9\
---------------------------------------------------------------------------
    \7\ FDA Advisory Opinion to the National Women's Health Network, 
Dkt. No. 83-0140/AP (Mar. 8, 1984).
    \8\ Id.
    \9\ Id.
---------------------------------------------------------------------------
    Similarly, in 1980, when responding to an application from the 
State of California for exemptions from preemption for numerous State 
requirements applicable to medical devices, the agency stated that 
penalties and remedies for violations of a State statute are general 
enforcement requirements, which are not preempted because they are not 
requirements with respect to a device.\10\ Likewise, when responding to 
a congressional request for an opinion on the preemptive status of 
another California statute, the agency stated that requirements 
established by States to govern the contractual obligations of sellers 
and buyers, and to delineate the legal rights and remedies available to 
consumers under the State judicial system, are not ``requirements with 
respect to a device'' within the meaning of section 521 and, 
consequently, are not preempted.
---------------------------------------------------------------------------
    \10\ 45 Fed. Reg. 67,321, 67,322 (Oct.10, 1980).
---------------------------------------------------------------------------
    Thus, although the agency had not formally expressed its position 
on the precise issue, it is clear from the views it expressed in many 
other contexts that it did not believe that State tort claims were 
preempted under section 521. Indeed, this was the prevailing view in 
the legal community until the early 1990s; no arguments were put 
forward that there should be preemption of these claims.
    The legislative history of section 521 contains no indication that 
the section was intended to preempt State tort claims. In fact, it 
contains no mention of product liability claims. Rather, when 
discussing the section, Congress focused specifically and exclusively 
on statutory programs administered by States and localities.\11\ 
Moreover, the procedure Congress created in the statute for States to 
apply to the agency for exemptions from preemption does not readily 
encompass State tort claims. The exemption procedure is designed to 
accommodate State and local legislative and regulatory provisions; it 
does not logically accommodate judicial rulings in private tort suits.
---------------------------------------------------------------------------
    \11\ H. Rep. No. 94-853, at 45-46 (1976).
---------------------------------------------------------------------------
    Another significant indication that Congress did not intend section 
521 to preempt State tort claims was its absolute failure to mention--
or even hint at--such a result. It is clear from the legislative 
history of the MDA that Congress was well aware of, and indeed 
discussed at length, ongoing product liability litigation involving 
medical devices. The legislative history contains numerous references 
to the Dalkon Shield cases and to litigation involving catheters, 
artificial heart valves, defibrillators, and pacemakers. Given the 
harsh implications of foreclosing all judicial recourse for consumers 
injured by defective medical devices, FDA does not believe that 
Congress intended to effect so sweeping a change without even a 
comment. Rather, the agency believes that Congress intended to restrict 
preemption to positive enactments (for example, legislation or 
regulations) that apply to the marketing of medical devices within a 
State, and did not intend to preempt State tort remedies for injury to 
individual consumers.
    While the agency was addressing the preemptive effect of section 
521 on various affirmative State and local requirements, there was a 
suggestion in certain product liability cases, starting with Cippolone 
v. Liggett Group, Inc.\12\ that preemption provisions in some Federal 
statutes could apply to State tort claims. The underlying principle 
relied on in Cippolone and echoed in a Lohr minority opinion was that 
the phrase ``no requirement or prohibition'' (as that language appears 
in the Federal Cigarette Labeling and Advertising Act) \13\ ``sweeps 
broadly and suggests no distinction between positive enactments and 
common law.''\14\ Based on the Supreme Court's language in Cippolone, 
courts began to interpret preemption provisions in other Federal 
statutes, including section 521, as preempting State tort claims.
---------------------------------------------------------------------------
    \12\ 505 U.S. 504 (1992).
    \13\ Pub. L. No. 89-72, 19 Stat. 282 (1965) (codified at 15 U.S.C. 
 1331-41 (1994)).
    \14\ Lohr, 116 S. Ct. at 2262; Cippolone, 505 U.S. at 521.
---------------------------------------------------------------------------
    The caselaw regarding preemption under section 521 developed 
quickly. Some courts narrowed the scope of preemption to areas in which 
FDA had imposed specific requirements on a specific device, most 
notably in the context of litigation involving tampons.\15\ Many other 
courts, however, found broader and broader categories of product 
liability claims preempted under section 521, until the scope of 
preemption was extended well beyond what the agency believed could have 
been intended by the Supreme Court in Cippolone. Thus, tort claims were 
preempted based on FDA's approval of a device, FDA's clearance of a 
device, use of a device on a patient in a clinical study under an 
investigational device exemption, and the existence of the general 
labeling and manufacturing requirements. Indeed, some courts found the 
mere fact that a product was a device, and therefore subject to 
regulation by FDA, was enough to shield device manufacturers from all 
liability to individual consumers. These decisions were inconsistent 
with FDA's long-standing position on preemption.
---------------------------------------------------------------------------
    \15\ See. e.g., Moore v. Kimberly-Clarke Corp., 867 F.2d 243 (5th 
Cir. 1989) (regarding 21 CFR 801.430. regulation of menstrual 
tampons).
---------------------------------------------------------------------------
    The first preemption case under section 521 in which FDA 
participated was Talbott v. Bard, Inc.\16\ The defendant in that case 
previously had pled guilty to conspiring to defraud FDA, to filing 
false statements with FDA, and to shipping adulterated devices.\17\ FDA 
filed an amicus brief with the First Circuit, stating its view that the 
plaintiffs' claims were not preempted because they were premised on the 
same deficiencies that gave rise to the Federal enforcement action, 
and, therefore, would not result in the imposition of any requirement 
that would be in addition to or different from those under Federal 
law.\18\ In its decision, the First Circuit interpreted section 521 
very broadly, immunizing manufacturers from all tort liability, even in 
cases where a manufacturer admittedly and intentionally had violated 
provisions of Federal law intended to ensure the safety and efficacy of 
medical devices.\19\
---------------------------------------------------------------------------
    \16\ 63 F.3d 25 (1st Cir. 1995).
    \17\ See Talbott v. Bard, Inc., 848 F. Supp. 287 (D. Mass. 1994).
    \18\ Brief for the United States as Amicus Curiae at 13-14, Talbott 
v. Bard, Inc., 63 F.3d 25 (1st Cir. 1995).
    \19\ Talbott, 63 E3d at 26-17.
---------------------------------------------------------------------------
    In December 1994, the U.S. Court of Appeals for the Fourth Circuit 
invited FDA to file an amicus brief in Duvall v. Bristol-Myers Squibb 
Co.,\20\ a case involving a claim of breach of express warranty in the 
context of a ``510(k)'d'' device.\21\ The agency filed a brief stating 
its view that express warranty claims are not preempted under section 
521.\22\ The agency reasoned that the statutory reference to 
requirements ``with respect to a device'' was intended to limit 
preemption to requirements that specifically target particular medical 
devices, and did not include generally applicable provisions of State 
law, such as those in the Uniform Commercial Code. In addition, the 
agency stated that the general requirement that devices be accompanied 
by a statement of intended use is not a device-specific requirement 
and, consequently, does not trigger preemption under section 521.\23\ 
The court accepted the agency's view and held that the express warranty 
claim was not preempted.\24\
---------------------------------------------------------------------------
    \20\ 65 F.3d 392 (4th Cir. 1995), vacated and remanded, 116 S. Ct. 
2576 (1996).
    \21\ See 21 U.S.C. 360(k) (FDCA 510(k)).
    \22\ Brief for the U.S. Food and Drug Admin. as Amicus Curiae, 
Duvall v. Bristol-Myers Squibb Co., 65 F.3d 392 (4th Cir. 1995) (No. 
94-1520).
    \23\ Id. at 1720.
    \24\ Duvall, 65 F.3d at 401.
---------------------------------------------------------------------------
    When the issue of possible preemption of State tort claims under 
section 521 reached the Supreme Court in Medtronic v. Lohr, the agency 
presented its view that State tort claims generally are not preempted 
under section 521, a view that is consistent with its longstanding 
position regarding both the scope of preemption under section 521 and 
the presumption against preemption. The agency explained that it 
consistently had construed the term ``requirement'' to refer to 
substantive, but not remedial, provisions.\25\ According to the agency, 
a finding of substantial equivalence should not preempt a defective 
design claim because that finding is not a determination that a 
particular design is required by the Act.\26\ The agency also stated 
that the good manufacturing practice and labeling provisions under the 
Act should not preempt a failure to warn or negligent manufacture claim 
because these are general requirements applicable to all devices, 
rather than specific requirements applicable to a particular 
device.\27\
---------------------------------------------------------------------------
    \25\ Brief for the United States as Amicus Curiae Supporting 
Respondents/Cross-Petitioners, Medtronic, Inc. v. Lohr, 116 S. Ct. 2240 
(1996) Nos. 95-754, 95-886 (U.S. Mar. 13, 1996), 1996 WL 118035, at 
*13.
    \26\ Id. at *6.
    \27\ Id. at *21.
---------------------------------------------------------------------------
    The agency's position was adopted by the Supreme Court in Lohr. The 
Court accepted FDA's narrow construction of the scope of section 521, 
reasoning that a finding of broad preemption would be entirely at odds 
with Congress' intent in enacting the MDA--to provide greater public 
health protection.\28\ The Court, like FDA, refused to find that 
Congress intended section 521 to usher in a sweeping preemption of 
traditional common law remedies against manufacturers and distributors 
of defective devices. There was a marked absence of such an intent on 
the part of legislators who were acutely aware of the high-profile 
product liability litigation involving medical devices. The Court 
emphasized the importance of not cavalierly preempting State 
regulation, particularly in fields traditionally left to the 
States.\29\ The Lohr Court also distinguished Cippolone, and discussed 
the intended use of the term ``requirement'' in section 521. The Court 
stated that in enacting section 521, Congress was concerned primarily 
with the problem of specific conflicting State statutes and regulations 
rather than the general duties enforced by common law actions.\30\ 
Where a regulatory scheme imposed a limited set of requirements, tort 
remedies could co-exist. The Court noted that Medtronic's argument 
would preempt all common law obligations.\31\
---------------------------------------------------------------------------
    \28\ Lohr, 116 S. Ct. at 2252-53.
    \29\ Id. at 2250.
    \30\ Id. at 2252.
    \31\ Id. at 2251.
---------------------------------------------------------------------------
    In Lohr, the Supreme Court held that a finding of substantial 
equivalence does not amount to a specific, federally enforceable design 
requirement, and consequently does not preempt a negligent design 
claim.\32\ The Court also held that the Act's labeling and 
manufacturing requirements do not preempt claims alleging failure to 
warn or negligent manufacture.\33\ The Court reasoned that the Federal 
requirements reflect important, but entirely generic, concerns about 
device regulation and that the State common law requirements were not 
specifically developed ``with respect to'' medical devices. Finally, 
the Court found that section 521 does not deny States the right to 
provide a traditional damages remedy for violations of common law 
duties when those duties parallel Federal requirements.\34\ The Court 
reasoned that the presence of a damages remedy does not amount to the 
additional or different ``requirement'' necessary to trigger preemption 
under section 521, but rather merely provides another reason for 
manufacturers to comply with identical existing requirements under 
Federal law.
---------------------------------------------------------------------------
    \32\ Id. at 2254-55.
    \33\ Id. at 2258.
    \34\ Id. at 2255.
---------------------------------------------------------------------------
    FDA's view is that FDA product approval and State tort liability 
usually operate independently, each providing a significant, yet 
distinct, layer of consumer protection. FDA regulation of a device 
cannot anticipate and protect against all safety risks to individual 
consumers. Even the most thorough regulation of a product such as a 
critical medical device may fail to identify potential problems 
presented by the product. Regulation cannot protect against all 
possible injuries that might result from use of a device over time. 
Preemption of all such claims would result in the loss of a significant 
layer of consumer protection, leaving consumers without a remedy for 
injuries caused by defective medical devices. Moreover, FDA's 
regulation of devices would have been accorded an entirely different 
weight in private tort litigation than its counterpart regulation of 
drugs and biologics. This disparity is neither justified nor 
appropriate, nor does the agency believe it was intended by Congress 
when section 521 was enacted.
    The fact that most State tort claims are not preempted under 
section 521 does not mean that there can be no valid defense to these 
claims on the merits. The existence of the Federal scheme will not 
automatically preclude these claims, however, and compliance with FDA 
regulations and requirements can only help a company in a product 
liability setting.
                                 ______
                                 
                                              AARP,
                                             March 2, 2009.
Senator Edward M. Kennedy, Chairman,
Health, Education, Labor, and Pensions Committee,
317 Russell Senate Office Building,
Washington, DC 20510.
    Dear Senator Kennedy: On behalf of AARP's almost 40 million 
members, we are pleased to endorse the Medical Device Safety Act of 
2009. Your legislation would make clear that the Medical Device 
Amendments of 1976 (MDA) do not preempt State laws that permit 
individuals, harmed by devices, the opportunity for legal recourse.
    The MDA was enacted by Congress in the wake of medical devices that 
severely injured or resulted in the death of individuals. Last year, in 
Riegel v. Medtronic the Supreme Court determined that the MDA preempted 
State tort law, leaving consumers the inability to obtain recourse when 
injured by unsafe medical devices. Your legislation would permit those 
who are harmed to pursue legal relief through the courts. The 
legislation will maintain FDA's oversight and regulatory approval 
process, and provide individuals a much-needed supplement to this 
authority.
    Consumers need to be assured that the medical devices--like heart 
valves, cerebral stimulators, and pacemakers--implanted into them are 
safe and effective. If these products cause harm, consumers should be 
able to pursue compensation through the legal system.
    We thank you for your leadership and look forward to working with 
you to ensure that this much-needed legislation is enacted. If you have 
any questions, please contact me or have your staff contact Anna 
Schwamlein Howard of our government relations staff at 202-434-3770.
            Sincerely,
                                           David P. Sloane,
                                             Senior Vice President,
                                   Government Relations & Advocacy.
                                 ______
                                 
              California Medical Association (CMA),
                                 Sacramento, CA 95814-2906,
                                                     March 2, 2009.
Hon. Dianne Feinstein,
U.S. Senate,
331 Hart Office Building,
Washington, DC 20515.

Re: Please Cosponsor the Medical Device Safety Act

    Dear Senator Feinstein: The California Medical Association is 
writing to urge you to cosponsor the Medical Device Safety Act when it 
is introduced by Chairmen Henry Waxman and Frank Pallone. It will 
protect patients and prevent increased physician exposure to medical 
liability claims.
    Last year, the medical device manufacturers successfully applied 
the Federal preemption doctrine to immunize their companies from 
lawsuits as illustrated by the Supreme Court's ruling in Riegel v. 
Medtronic. Shortly after the Riegel decision was issued, congressional 
representatives introduced the Medical Device Safety Act to reaffirm 
Congress' intent that medical device manufacturers should not be 
immunized from lawsuits.
    Physicians will likely see more claims filed against them post-
Riegel, if the Medical Device Safety Act is not enacted. Without the 
ability to seek restitution from the medical device makers, patients 
who are injured by defective medical devices will likely pursue claims 
against doctors and others in the medical profession who prescribed or 
implanted the defective device. Patients who have suffered serious 
injuries, or death, due to defective medical devices will likely have 
significant health care costs, loss of income from extended absences 
from work and other expenses that will not be covered by their 
healthcare or disability insurance.
    Attached is CMA's Amicus Brief in favor of the Respondent in Wyeth 
v. Levine, as well as a recent report issued by the U.S. House of 
Representatives detailing how FDA career staff objected to agency 
preemption policies. We also recommend viewing the JAMA article from 
October 21, 2008 entitled ``Prescription Drugs, Product Liability, and 
Preemption of Tort Litigation,'' at http://www.jama.ama-assn.org/cgi/
content/full/300/16/1939 for more information on this issue.
    The CMA would like to ask you to join us in this fight to protect 
patients and physicians by cosponsoring the Medical Device Safety Act 
when it is introduced in the 111th Congress. Without these important 
clarifications of congressional intent, physicians could face an 
economic crisis of epic proportions that would negatively affect access 
to health care at a time when we should be focusing on improving the 
state of health care.
            Sincerely,
                                          Dev Gnanadev, MD,
                                                         President.

                                Senator Joseph Dunn (ret.),
                                           Chief Executive Officer.
                                 ______
                                 
                                                     March 5, 2009.
Hon. Henry A. Waxman, Chair,
Committee on Energy and Commerce.

Hon. Frank Pallone, Jr., Chair,
Subcommittee on Health, Committee on Energy and Commerce.

    Dear Chairman Waxman and Rep. Pallone: Our groups, advocates for 
consumer health and safety, write to express our strong support for the 
Medical Device Safety Act. This bill will restore injured patients' 
ability to bring claims for injuries caused by defective medical 
devices.
    The legislation was drafted in response to Riegel v. Medtronic, a 
2008 Supreme Court decision which held that pre-market approval of a 
medical device by the Food and Drug Administration (FDA) under the 
Medical Device Amendments of 1976 immunizes the device manufacturer 
from tort liability. The decision removes a vital and long-standing 
component of the consumer safety net for medical devices and deprives 
injured patients of their only avenue for seeking compensation for 
their injuries.
    Injured patients already have begun to feel the effects of Riegel. 
Recently, a Minnesota district court relied on Riegel to dismiss the 
State law claims of thousands of patients who were injured or died from 
Medtronic's faulty Sprint Fidelis implantable defibrillator, leaving 
them with no means for obtaining compensation for their injuries. 
Medtronic recalled the devices in October 2007 but reportedly knew 
about the defects since at least January 2007. Despite this knowledge, 
the company launched a direct-to-consumer advertising campaign urging 
consumers to ask their doctors whether a defibrillator would benefit 
them.\1\ Thus, Medtronic manufactured a defective device that hurts its 
users, continued marketing the product even after it knew that the 
product was injuring people, and yet escapes accountability because the 
FDA had approved the product before it went on the market, and well 
before the defect was known.
---------------------------------------------------------------------------
    \1\ Medtronic Press Release, Jan. 15, 2007. http://
www.medtronic.com/Newsroom/NewsRelease
Details.do?itemId=1168456009954⟨=en_US.
---------------------------------------------------------------------------
    Preemption of State tort suits over medical devices is especially 
harmful because it places all responsibility for device regulation in 
the hands of the FDA, which cannot protect consumers on its own. 
Numerous reports list the numerous challenges that the agency faces. 
For example, an FDA subcommittee concluded in 2007 that the agency 
``suffers from serious scientific deficiencies'' and ``is not 
positioned to meet emerging regulatory responsibilities,'' \2\ while a 
2008 report by the House Committee on Oversight and Government Reform 
shed light on the political motivations behind the agency's efforts to 
immunize drug manufacturers from liability.\3\ The FDA also has 
conceded that its post-approval monitoring of medical devices is ``not 
working well.'' \4\ Although the agency has the authority to withdraw 
device approval, it rarely uses this tool, choosing instead to rely 
upon the tort system, market forces, and the threat of agency action to 
induce manufacturer recalls. Even when a defective device is identified 
and removed, the agency lacks authority to secure compensation for 
injured patients.
---------------------------------------------------------------------------
    \2\ Subcomm. on Sci. and Tech., U.S. Food and Drug Admin., FDA 
Science and Mission At Risk 2 (2007).
    \3\ U.S. House of Representatives Committee on Oversight and 
Government Reform Majority Staff Report. FDA Career Staff Objected to 
Agency Preemption Policies. (2008).
    \4\ Petitioner's Brief at 5, Riegel, 552 U.S._128 S. Ct. 999 (No. 
06-179).
---------------------------------------------------------------------------
    Further, the pre-market approval process for medical devices does 
not provide the public with foolproof protection--and was never 
intended to do so. It is only one part of a broader consumer protection 
regime, in which private tort litigation plays a critical role. Even 
comprehensive pre-market testing cannot uncover all defects or risks 
posed by a new product. Tort litigation facilitates the discovery of 
flaws in devices on the market and brings them to the FDA's and the 
public's attention. Damages actions also deter risky device designs, 
encourage continued research and testing of devices on the market, and 
compensate victims for deaths and injuries caused by device defects. As 
an October 2008 editorial in the Journal of the American Medical 
Association succinctly stated: ``tort law serves in effect as a way to 
close regulatory gaps in the FDA premarketing approval process and to 
provide a mechanism for post marketing surveillance.'' \5\
---------------------------------------------------------------------------
    \5\ Catherine D. DeAngelis; Phil B. Fontanarosa. Prescription 
Drugs, Products Liability, and Preemption of Tort Litigation. JAMA 
(2008).
---------------------------------------------------------------------------
    Under Riegel, the Medical Device Amendments immunize manufacturers 
from liability for injuries caused by design defects, inadequate 
instructions, and failure to warn of risks associated with using pre-
market approved devices. With passage of the Medical Device Safety Act, 
Congress will restore a patient's ability to seek to hold medical 
device manufacturers accountable for any wrongdoing. We strongly urge 
you and all Members of Congress to support this legislation.
            Sincerely,

   Center for Justice & Democracy; Consumer Federation of America; 
          Consumers Union; Homeowners Against Deficient Dwellings; 
    National Association of Consumer Advocates; National Consumers 
                                                           League; 
     OWL--The Voice of Midlife and Older Women; Progressive States 
                                                          Network; 
           Public Citizen; and U.S. Public Interest Research Group.
                                 ______
                                 
                                   Consumers Union,
                                      Washington, DC 20036,
                                                     March 9, 2009.
Hon. Edward Kennedy,
U.S. Senate,
317 Russell Senate Office Building,
Washington, DC 20510.

Hon. Patrick Leahy,
U.S. Senate,
433 Russell Senate Office Building,
Washington, DC 20510.
    Dear Chairmen Kennedy and Senator Leahy: Consumers Union, the non-
profit publisher of Consumer Reports, is writing in support of your 
legislation, the ``Medical Device Safety Act of 2009.''
    Your bill would reverse the Supreme Court's misguided decision in 
Riegel v. Medtronic, which misread a longstanding law and held that a 
consumer injured by a defective or faulty medical devices could not sue 
the device manufacturer if the manufacturer had gotten FDA approval for 
the device.
    As you know, the FDA has been deservedly criticized for inadequate 
oversight and enforcement efforts related to safety. A recent report by 
an FDA subcommittee found that the FDA is ``not positioned to meet 
emerging regulatory responsibilities.'' The FDA has admitted that its 
post-approval monitoring of medical devices is ``not working well,'' a 
point painfully emphasized by each injury and recall. Yet by barring 
lawsuits over faulty medical devices, the Supreme Court in Riegel has 
effectively placed the entire responsibility for regulating medical 
devices in the hands of the FDA.
    Congress cannot delay in acting on this legislation. The Riegel 
decision is already being used to withhold justice from consumers who 
were injured by defective medical devices. Earlier this year, a Federal 
judge in Minnesota cited Riegel and dismissed numerous claims against 
Medtronic over a defibrillator, calling the injured consumers 
``sympathetic plaintiffs who are, nevertheless, without remedy by 
operation by law,'' noting that the plaintiffs' remedy now ``lies with 
Congress, and not with this court (or any other court).''
    The Riegel decision weakened protections available to consumers 
injured by faulty medical devices. Your bill would restore these 
protections and the original intent of the Medical Device Amendments of 
1976, and ensure that consumers who suffer injuries or death can sue 
the manufacturers of the defective devices that harmed them.
    We look forward to working with you to help restore consumers' 
legal rights.

                                               Ellen Bloom,
                                          Director, Federal Policy,
                                                   Consumers Union.

                                    March 10, 2009.
Senator Edward M. Kennedy, Chairman,
Health, Education, Labor, and Pensions Committee,
U.S. Senate,
317 Russell Senate Building,
Washington, DC 20510.

Senator Patrick J. Leahy, Chairman,
Judiciary Committee,
U.S. Senate,
433 Russell Senate Building,
Washington, DC 20510.

Representative Henry Waxman, Chairman,
Energy and Commerce Committee,
U.S. House of Representatives,
2125 Rayburn House Office Building,
Washington, DC 20515.

Representative Frank Pallone, Jr.,
U.S. House of Representatives,
237 Cannon House Office Building,
Washington, DC 20515.
    Dear Chairman Kennedy, Chairman Leahy, Chairman Waxman, and 
Representative Pallone: We, the undersigned national medical and health 
organizations, are writing to express our support for the ``Medical 
Device Safety Act.'' This much-needed legislation addresses the Supreme 
Court's recent decision in Riegel v. Medtronic, by restoring 
congressional intent and the ability of injured patients to hold 
negligent medical device manufacturers accountable for product-related 
deaths and injuries. Immunity should not be given to device 
manufacturers who fail to adequately warn about device risks--
especially when a risk, known to the manufacturer, later causes 
permanent and debilitating injuries.
    Under Riegel, manufacturers of FDA-approved medical devices are 
given complete immunity from liability for product related deaths and 
injuries. This immunity protection even extends to manufacturers who 
fail to warn about device problems that arise after FDA approval. By 
eradicating manufacturer accountability, thousands of patients injured 
by defective devices would be unable to receive any recourse for their 
injuries. An upcoming Supreme Court case (Wyeth v. Levine) dealing with 
prescription drugs could further limit the rights of patients to hold 
drug manufacturers accountable.
    As a March 2008 New England Journal of Medicine editorial states,

          ``Implanted medical devices have enriched and extended the 
        lives of countless people, but device malfunctions and software 
        glitches have become modern `diseases' that will continue to 
        occur.''

    We know firsthand how beneficial medical devices are for patients 
suffering from illnesses. However, we also know there are times when 
devices malfunction and in those instances, it is critical for patients 
to be able to hold accountable the manufacturers responsible for their 
injuries.
    The Medical Device Safety Act addresses these gaps and capitalizes 
on 30 years of experience under the 1976 Medical Device Amendments by 
utilizing both FDA regulation and State tort law to ensure the safety 
of medical devices. This legislation explicitly states that actions for 
damages under State law are preserved and makes this retroactive to the 
date when Congress enacted the Medical Devices Amendment of 1976.
    For these reasons, we strongly support the Medical Device Safety 
Act. Manufacturer accountability for defective devices cannot be so 
easily eliminated after 30 years of proven effectiveness. Reiterating 
Congress' intent and restoring manufacturer accountability is a much-
needed first step towards ensuring reasonably safe medical devices. We 
look forward to working with you and your staff to pass this very 
important legislation.

            Sincerely,

 Community Catalyst; Disability Rights Education and Defense Fund; 
Easter Seals; Families USA; Friends of Residents in Long Term Care; 

   Pulmonary Hypertension Association; Toxic Discovery; and United 
                                                            Spinal.
                                 ______
                                 
                                            March 12, 2009.
Hon. Harry Reid, Majority Leader,
U.S. Senate,
Washington, DC 20510.
    Dear Majority Leader Reid: The above members of the Patient and 
Consumer Coalition strongly support the Medical Device Safety Act of 
2009. This Act will restore the rights of injured patients and 
consumers to sue the manufacturers of defective medical devices in 
State courts.
    Last year, the U.S. Supreme Court ruled in Riegel v. Medtronic, 
Inc. that medical devices makers are shielded from personal injury 
lawsuits, if their defective or unsafe product was approved by the Food 
and Drug Administration's (FDA) pre-market approval (PMA) process.
    The Supreme Court and the medical device manufacturing industry 
stated that the FDA's ``rigorous pre-market approval process'' will 
protect patients and consumers from dangerous devices, so patients do 
not need State protections. However, numerous recent product recalls 
make it clear that many medical devices that are sold in the United 
States are not safe.
    The Institute of Medicine and the U.S. Government Accountability 
Office have issued reports concluding that poor management, scientific 
inadequacies, and lack of resources, inspections, and post-market 
surveillance systems have undermined the agency's ability to protect 
Americans from unsafe drugs and medical devices.
    The Patient and Consumer Coalition is gravely concerned that the 
Supreme Court ruling will shield from lawsuits manufacturers who 
received FDA approval through inadequate or false data or by 
withholding important safety and effectiveness data. In the past, 
lawsuits have helped to elicit information about false or misleading 
data. Without the discovery process from lawsuits, risk information 
that was covered-up by a company might never be made public.
    It is clear that patients and consumers cannot have full confidence 
in the ability of the FDA to protect them from dangerous and deadly 
medical devices. The Supreme Court ruling has already had a negative 
impact on patients. Recently, a Minnesota district court relied on 
Riegel to dismiss the State law claims of more than 1,000 patients who 
were injured or died from Medtronic's faulty Sprint Fidelis implantable 
defibrillator.
    According to news reports, ``More than 235,000 people received the 
Sprint Fidelis leads before they were recalled, and many of those 
patients still have them in place.''
    The Medical Device Safety Act of 2009 would allow injured patients 
to seek redress in State courts, and the threat of litigation would 
provide a financial incentive to manufacturing companies to ensure that 
their products are as safe as possible. For the above reasons, the 
Patient and Consumer Coalition strongly supports this legislation.
            Sincerely,

      Breast Cancer Action; Center for Medical Consumers; National 
                                                 Consumers League; 
 National Research Center for Women & Families; Title II Community 
          AIDS National Network; The TMJ Association; WoodyMatters.
                                 ______
                                 
                                    March 31, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: I am writing to state my support for the Medical Device 
Safety Act. It has been introduced in the Senate as S. 540 and in the 
House as H.R. 1346.
                                my story
    On April 13, 2007 I suffered a Sudden Cardiac Arrest. I am alive 
today because a doctor who was nearby administered CPR until the EMTs 
arrived.
    I had an ICD (an internal defibrillator) implanted. It is connected 
to my heart by a lead that goes through an artery and is attached to 
the inside of my heart. Both the defibrillator and the lead were 
manufactured by Medtronic Incorporated.
    On June 30, 2008, my Medtronic Sprint Fidelis lead failed. I 
received 21 incredibly painful shocks from the ICD in less than 1 hour. 
Other people who have received these shocks describe them as ``having a 
cannon fired into my chest'' or ``being kicked in the chest by a horse 
that is inside and trying to get out.'' Those descriptions are close, 
but they really don't do justice to the pain.
    I arrived by ambulance at Presbyterian Hospital in Charlotte, NC. A 
Medtronic technician was waiting for me in the emergency room. He 
hooked me up to a computer and almost immediately told me that:

     I had received the shocks because the lead had failed.
     He had disabled the defibrillator.
     My ICD had been detecting the impending failure since June 
14--16 days earlier.

    The following day I had surgery. The surgeon removed the lead and 
put in a new one. He implanted a Medtronic Sprint Quattro lead. The 
Quattro is an older model that Medtronic had replaced on the marked 
with the Sprint Fidelis.
    I work at a small, privately owned corporation. Our medical 
insurance was self-funded at the time. The events that occurred on June 
30 and the few days following ultimately cost the company almost 
$30,000, and I personally had several thousand dollars more that I had 
to pay out.
                      sprint fidelis leads history
    In 2004, the FDA approved the Sprint Fidelis lead.
    Medtronic described the leads as an evolutionary advance from the 
Quattro, and filed the application as a supplement to the already 
approved Quattro (which had been approved similarly based on earlier 
leads). Even though the wires in the lead are much thinner than in the 
Sprint Quattro lead, and the lead is manufactured differently, the 
Sprint Fidelis leads never went through the full PMA process.
    During 2007, reports began coming out about doctors, most notably 
Dr. Robert Hauser of the Minnesota Heart Institute, who were seeing 
failure rates so high that they were no longer using Sprint Fidelis 
leads. They were advising both Medtronic and the FDA that they believed 
there was a problem with the Sprint Fidelis.
    In March 2007--the month before I received my implant--Medtronic 
issued a letter to the medical community. They said that they had 
reports of ``higher than expected conductor fracture rates'' with the 
Sprint Fidelis leads. They went on to say they believed the problem was 
with how the leads were being handled while they were being implanted. 
They gave no indication that there might be a problem with the leads 
themselves.
    On October 15, 2007, 6 months after my implant, Medtronic sent out 
another letter. They instructed doctors to stop implanting Sprint 
Fidelis leads and to return any unused products to Medtronic. Medtronic 
recommended that implanted leads not be replaced because that procedure 
was more dangerous than leaving them in. They also stated that 268,000 
Sprint Fidelis leads had been implanted in patients.
    That same day the FDA issued a ``Class 1 Product Recall.'' This 
type of recall is the highest level, and is issued when a device is 
likely to cause serious injury or death.
    The FDA issued a document titled ``Medtronic Recalls Sprint Fidelis 
Cardiac Leads: Questions and Answers for Consumers.'' That document 
included the following:

          ``There are two alternatives to removing the lead. One is to 
        continue using the lead while monitoring closely for signs of 
        fracture. A second is to surgically add a replacement lead.''

    The first alternative is clearly the less expensive, the less 
invasive, the less dangerous and the less expensive.
Medtronic did not Heed the FDA recommendations
    I have a device called a ``Medtronic Carelink Monitor'' that reads 
the data from my implant and transmits it to Medtronic. The process is 
very simple--you plug in a phone line, put a device that looks like a 
mouse on your chest, and press a button. The entire procedure takes 
less than 5 minutes.
    It costs me or my insurance about $200 each time my doctor orders a 
transmission (to monitor whether I have had any cardiac events).
    Medtronic's computers record these transmissions and will detect 
lead failures. If Medtronic had advised patients to use the monitors 
regularly (thus ``monitoring closely for signs of fracture''), their 
computer would have detected my lead failure in any transmission from 
June 14 to June 30. I would still have had the surgery, but I would not 
have received those shocks.
    Medtronic never made that advisement!
                  the ramifications of a lead failure
    There are at least three ways that a lead failure can lead to 
problems:

    1. A person suffers a cardiac event. The defibrillator cannot 
detect the event and thus does not deliver the life-saving shock. That 
patient probably dies.
    2. A person can get multiple shocks because the lead has fractured. 
There might or might not be any permanent damage to the heart, but the 
person has suffered significant pain and significant expense.
    3. A person can receive shocks because of a lead fracture, and 
those shocks cause the person's heart to malfunction. This person will 
likely die.
         the need for passage of the medical device safety act
    In February, 2007, the U.S. Supreme Court ruled in Reigel v. 
Medtronic. Charles Reigel was undergoing an angioplasty procedure. A 
catheter, manufactured by Medtronic, burst during the procedure. Mr. 
Reigel died from complications that arose from that catheter failure.
    In the ensuing civil trial, Medtronic claimed that they could not 
be sued for a possibly defective device because the catheter had 
received PMA approval from the FDA. They maintained that the approval 
preempted any civil suits because of the Medical Device Amendment of 
1976, which Congress had enacted to delineate the FDA's authority and 
obligations in regard to medical devices. The Supreme Court agreed.
    It's no surprise that people started civil suits in various State 
courts against Medtronic on the Sprint Fidelis leads. The federal court 
system put these cases into a Multi-District Legislation so that they 
would all be heard in the Federal District Court in Minnesota.
    Earlier this year, Judge Richard Kyle Sr. dismissed the more than 
1,400 cases, accepting Medtronics' assertion that all of the 
particulars in the complaints were preempted by the Medical Device 
Amendment of 1976.
    In Judge Kyle's decision, he stated:

          ``Congress has decided to limit medical-device manufacturers' 
        liability in order to spur innovation, even though individuals 
        are sometimes injured when using medical devices. Plaintiffs' 
        remedy, therefore, lies with Congress, and not with this Court 
        (or any other court).''

    The FDA, until early in this decade, had supported the concept that 
the ability of victims of medical device problems to sue Medical Device 
Manufacturers was a significant factor in making manufacturers do their 
best to produce safe devices and to correct problems with the devices.
    Yet now, the Supreme Court and Judge Kyle have made it essentially 
impossible for victims to sue the manufacturers.
    I don't know whether what happened to me was the result of a 
defective design, or defective manufacturing of the lead. That can only 
be determined in Discovery if I am able to sue Medtronic! I do know, 
however;

     Medtronic probably knew well before my lead was implanted 
that there were problems with the Sprint Fidelis leads.
     My doctor could have used a different product such as the 
Quattro lead had he known that there was a problem with the Sprint 
Fidelis.
     According to the estimates that have appeared in the 
press, there are still 150,000 people with Sprint Fidelis leads 
implanted. I don't know what happened to the other 118,000, but those 
150,000 people are walking around with ``ticking time bombs'' in their 
chests.
     Medtronic is still doing nothing to protect those 150,000 
people.
     Sprint Fidelis leads are continuing to fail. The FDA's 
MAUDE database shows more failures every month.
     I am out several thousand dollars, and my employer is out 
$30,000.
     I cannot sue Medtronic to recover the costs I and my 
company incurred.
     The Sprint Fidelis leads are just one of numerous Class 3 
medical devices approved by the FDA through the PMA process. People 
with any of the other devices, should there be problems, are in the 
same situation as I and the other victims of the Sprint Fidelis leads.

    As Judge Kyle pointed out, my remedy lies with Congress.
    The Medical Device Safety Act is the remedy I need to restore my 
right to sue Medtronic.
    I am begging you to support the Medical Device Safety Act.

     Restore the law to what existed prior to Reigel v. 
Medtronic.
     Restore the law to what was originally intended by 
Congress.
     Restore to victims the ability to seek recompense from the 
manufacturers.
     Restore the incentive to manufacturers to produce the best 
devices they can and to protect their customers when there are 
problems.
                                              Don Fernbach.
                                 ______
                                 
                                     July 30, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: My name is Michael Collins. I am 43 years old and a resident 
of Georgetown, TX. My son Joseph Collins and I have both been injured 
by a Medtronic defibrillator. My 14-year-old son Joe collapsed in July 
2006 during baseball practice for his team and his heart was in 
ventricular fibrillation. It was discovered he had HCM, which is a 
genetic defect of the heart that can cause sudden death. He was 
implanted with a Medtronic defibrillator and a Sprint Fidelis lead 
model #6949.
    Since this disease is genetic, the family was tested and I found 
that I had the same defect. I am very active and my cardiologist was 
concerned that I may have an event similar to my son. On September 6, 
2006, I was implanted with a Medtronic defibrillator with the Sprint 
Fidelis model #6931. In both cases, I was told the device life would be 
up to 10 years for each of us based on how often it had to administer a 
shock. The batteries can not be recharged so the more it is used, the 
quicker it has to be replaced.
    On June 20, 2007 (9 months after the implant surgery), I was 
exercising at the gym and the defibrillator shocked me six times. The 
first shock felt as if someone had hit me in the head and chest 
extremely hard. It blurred my vision and caused me to be confused for a 
moment. I actually thought someone had purposely hit me with something. 
A few seconds later, the same pain was felt again. At this point I 
realized what was happening but knew the shocks were not necessary. The 
device continued to shock me four more times. Each shock caused me to 
become more concerned about how many times I would need to endure the 
pain. I was taken from the gym by ambulance to a local hospital for 
evaluation. It was determined that the defibrillator lead had shorted. 
If I simply moved my left arm the device improperly sensed that my 
heart was having problems. The device was disabled and surgery was 
scheduled to replace the broken lead. There was nothing medically wrong 
with me, the device failed. On June 27, 2007, I underwent surgery that 
removed the entire lead from my heart to upper chest and replaced it 
again with a Sprint Fidelis lead model #6931. At the time, I was told 
my situation was extremely rare and the odds of having future issues 
were incredibly high. I again would have to endure a 6-week recovery 
period from the surgery.
    On October 23, 2007, I received the letter regarding the recall of 
the Sprint Fidelis leads. They had recalled the first lead that my son 
had implanted and both of the leads I had implanted. I visited my 
doctor's office on Saturday, November 10, 2007 to make the changes to 
the defibrillator as outlined in the Medtronic letter to doctors dated 
October 15, 2007. I found it incredibly unfair that I was charged a co-
pay and my insurance was billed for an office visit when I only met 
with a Medtronic Representative at their request to check their faulty 
device. This is another example of how a defective product creates 
profit for companies and creates no responsibility.
    On April 1, 2008, my son Joe was shocked twice when his lead failed 
while he was walking down the driveway at our home. Joe and I were 
repairing a sprinkler head at our home. He had gone to get a tool that 
was needed and as he was returning, he received a shock from the 
device. I observed the entire incident and came to his aid. My wife 
took Joe inside and attempted to have his device transmit information 
electronically over the phone to determine what happened. Joe was 
standing still with the transmitting device over his chest when he was 
shocked a second time. We immediately contacted the Doctor and we were 
instructed to take him directly to the emergency room. Joe was visibly 
shaken and concerned about enduring repeated shocks. Upon arrival at 
the emergency room, we were met by a Medtronic Representative. After 
some testing he told me that Joe's lead had short circuited. Like me, 
my son had to undergo an explant surgery to remove the device and 
fractured lead. Joseph was placed in ICU since his device had to be 
turned off and the surgery was scheduled for the next day. Joe 
underwent surgery that removed the entire lead from his heart to upper 
chest. The new lead would be a Medtronic lead that was not involved in 
the recall. A new defibrillator was also implanted at this time. Joe 
was released to go home the following day. He would again endure a 6-
week recovery period. Unfortunately, about a week after the surgery the 
defibrillator sensing was too high and it actually paced Joe's heart 
into stopping and then administered a shock to restart his heart. Joe 
did loose consciousness during this event. The doctor modified some 
settings in the device and we have not had any issues since.
    Once Joe's lead shorted I became very concerned about my 
replacement lead. The ``extremely rare'' event had happened twice in 
one home and I now still had a recalled lead in my chest. I was very 
concerned my wires would fail again. At this time my Doctor prescribed 
the antidepressant Zoloft to help me deal with my anxiety. I am still 
taking the medication today. I also requested a magnet to disable the 
device if it began administering shocks needlessly. I honestly live in 
more fear of the leads failing than I do of my heart actually having a 
problem. I exercise regularly and play some sports but I am constantly 
concerned the device might fail during exertion, as it did before. As 
you would also understand, after this event I had many questions from 
friends and bystanders about what had happened at the gym. People to 
this day still look at you different and treat you different than 
before the lead failure.
    When Joe's lead shorted, he was trying really hard to get his life 
back to normal. He put everything he had into playing the game of golf 
since that was the only sport all the doctors would allow him to 
participate in. We paid for many golf lessons and supported him in 
every way we could to try to keep his spirits up. He was looking 
forward to playing school golf and had worked hard enough to make the 
High School Team. Joe was excited for once in a long time. 
Consequently, Joe was very upset when he had to undergo the replacement 
surgery just 20 months after the first time. He also was angry he was 
going to miss the first District Tournament that was to take place on 
April 2, 2008, the next day. Joe would have to make up all missed 
school work and endure 6 weeks of rehabilitation. School would be over 
once his rehabilitation was complete and once again he would be let 
down, not being able to participate in High School sports. That would 
mean 6 more weeks of not playing golf and putting him further behind 
once again on his golf skills. This resulted in additional lessons and 
most important trying to keep Joe's spirits high and positive. 
Unfortunately, what may seem to be minor to those that do not have to 
deal with these issues is pretty huge to a 16-year-old who had dreams, 
made new ones and had to start over again and again. Joe is not taking 
any medication at this time for anxiety but we have had multiple 
episodes where Joe has thought he received a shock while he was 
sleeping. We have contacted the doctor more than once to check the 
situation and in all cases it was only in his mind. He still has 
reoccurring dreams of being shocked.
    As for the financial impact, the total cost of just the two 
replacement surgeries was in excess of $135,000 with me having to 
personally cover $6,000 of the expense in deductibles and co-pays. It 
is inconceivable that I would be held responsible to pay for both of 
these lead failures. With the use of credit cards and personal savings 
I have made the entire payment but endured threatening Collection 
Notices on my son's second surgery. The insurance implications are also 
important as the total cost of each surgery is counted towards our 
lifetime caps. Given the fact that I am 43 and my son is now 17, it is 
critical to manage our medical insurance so we do not find ourselves 
without coverage due to cap limits.
    I urge you to pass the Medical Device Safety Act. As described 
above, my family has endured significant suffering related to the lead 
failures and I have no recourse in the situation. It is important that 
companies are held responsible for their decisions and do not continue 
to profit from devices that they know are faulty but are very 
profitable and carry no liability once FDA approved. With any other 
product in the United States, the manufacturer is responsible for it's 
safety and held accountable for it. I find it unconscionable that a 
device can be developed, marketed and sold that's purpose is to save a 
human life and the manufacturer has no liability or motivation to 
insure it's quality because of FDA approval. Many experts have argued 
that the FDA does not have the resources to make this evaluation. My 
replacement lead was billed at $17,000 and my son's replacement lead 
was $20,000. This cost is simply for the wire that runs from the 
defibrillator to the heart, not for any of the surgery. Medtronic was 
aware there were failure issues with the Sprint Fidelis leads at the 
time of my replacement surgery but continued to sell and implant the 
leads without conscious. However, Medtronic's fiscal year profits in 
the year ended April 25, 2008, the same timeframe of both replacement 
surgeries, were $2.23 billion. Without any accountability, there will 
be no motivation to produce high quality medical devices or to remove 
the faulty products from distribution.
            Sincerely,
                                           Michael Collins,
                                              Georgetown, TX 78628.
                                 ______
                                 
                                     July 30, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: I would like to thank you for your support of the Medical 
Device Safety Act. The passage of this act will make a positive impact 
on our family. My wife, both my children, Avery and Oliver, and 17 
members of my wife's family, have a genetic heart condition called Long 
Q-T Syndrome. One of the symptoms of Long Q-T Syndrome is cardiac 
arrest without warning. Following our doctor's medical advice Avery, 
our daughter was implanted with a Medtronic Defibrillator with a Sprint 
Fidelis shocking coil.
    Less than a year after the defibrillator was implanted, Avery was 
playing in our basement when she started screaming, convinced that 
there were monsters getting her. My wife picked her up and could feel 
the shocks through her body. When the paramedics came, they assured us 
that her heart beat was in a normal sinus rhythm at a mere 110 beats 
per minute, which is well below her shocking threshold. When we got to 
the hospital she was shocked simply sitting there in triage. By the 
time the Medtronic Representative got there to turn off the device, 
Avery had been shocked nine times without warrant. For months 
afterwards Avery was scared of sudden sounds like a garbage truck 
backing up or a cell phone chime and insisted on wearing a hood or hat 
everywhere to muffle the potential for sound. It was a long time before 
we even saw her smile again. We were very lucky that the 911 response 
was quick and we were able to have the device deactivated relatively 
quickly or the outcome could have been far more severe.
    Once we discovered the malfunction, our doctor thought that it was 
best to replace the device with a more efficient model, thankfully not 
implanting another Sprint Fidelis lead. About a month later Medtronic 
issued a recall on devices using the Sprint Fidelis leads. We expected 
that we would be reimbursed for our replacement expenses but Medtronic 
said that we violated warranty by following our doctors orders and 
using a different device.
    When it became clear that Medtronic would not work with us 
individually, we filed a lawsuit to hold Medtronic accountable. Relying 
on the preemption doctrine in the Reigel case, Medtronic denies any 
legal responsibility and the District Court has dismissed many cases. 
My son Oliver just turned 2 years old and will need a device implanted 
soon. I am extremely concerned about the surgery without knowing 
whether we will have any legal recourse if the device proves defective. 
To some, that may seem an unlikely scenario. However, I know from 
personal experience that recalls are common. Multiple devices implanted 
in our family and relatives have been recalled.
    Thank you again for your support. I hope we can help make the world 
a little safer place for people who need the assistance of medical 
devices.
            Sincerely,
                                    Alex and Molly de Groh,
                                                 McHenry, IL 60050.
                                 ______
                                 
                                     July 30, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: My name is Crystal Wahl. I am 56-years old and a resident of 
Davenport, IA. It was on a Friday evening, about 5:30 p.m., and I had 
just taken a shower. I was sitting on the edge of my bed, putting on 
lotion when I got really dizzy and began feeling nauseated. Just then, 
my phone rang. I answered it, and then I heard this clicking sound. I 
have a CareLink Monitor in the bedroom, which monitors the Medtronic 
device implanted in me. The monitor was trying to transmit, so I told 
my daughter I had to hang-up. When I hung up, I heard the alarm going 
off on my pacemaker, so I knew something wasn't right. I left the 
bedroom and sat down at the table, and right after I sat down, I was 
shocked. We called 911 right away. I am 100 percent dependent on the 
pacemaker, and was really scared at this point, since it was shocking 
me. I was afraid it was trying to quit.
    While I was talking to the lady on the 911 call, I was shocked a 
second time. Then after the paramedics got to my home, they had me 
hooked up to another monitor. They asked if I could take a couple of 
steps over to their gurney. As soon as I sat down on the gurney, I was 
shocked a third time. This whole time I was definitely very afraid that 
my pacemaker was going to quit and that I was going to die.
    They got me to the hospital and a Medtronic Representative was 
called into the hospital room. When he came in, the first thing he said 
was, ``Don't move. Don't move your left arm. I think you've got a 
fractured wire.'' After checking his computer he confirmed that I had a 
fractured wire. At that point, he turned the shocking mechanism off.
    I asked the Medtronic Representative when they would have found out 
about the wire being fractured, since it was transmitted. He replied, 
``Well, since it was a Friday evening and the doctor's office was 
closed, they wouldn't even have known until Monday.''
    The following morning, I went into surgery and they replaced the 
wire. It was a very frightening experience, one I never want to have to 
go through again.
            Sincerely,
                                              Crystal Wahl,
                                               Davenport, IA 52804.
                                 ______
                                 
                                            August 4, 2009.
Hon. Edward M. Kennedy, Chairman,
Senate Committee on Health, Education, Labor, and Pensions,
Dirken Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: Writing this letter is not easy, even after 3 years. Our 
son's name was Robert Wallace Baird. He died on September 14, 2006 at 
the age of 16. Robert died with a Medtronic Sigma series pacemaker 
implanted in his body, a device we would come to find out was 
subsequently recalled by the FDA for what appears to be the exact 
problem that was found with the device at the time of Robert's death.
    On July 29, 1994, at 4\1/2\ years of age, Robert was diagnosed with 
second degree heart block. On September 6, 1996, at 5 years of age, 
Robert received his first pacemaker, a Thera VDD-i. We were told that 
our son would live a full life and were advised not to worry about the 
pacemaker.
    On October 26, 2002, Robert's pacemaker failed due to a lead 
fracture. Robert received his second pacemaker, a Sigma SDR303 on 
November 5, 2002. At that time Robert was diagnosed with complete heart 
block. We were told that the key to Robert living a long, productive 
life was dependent upon a pacemaker.
    In November, 2005 a small subset of Robert's pacemaker, the Sigma 
series, was recalled due to ``separation of redundant interconnect 
wires.'' The recall stated, ``This subset of Sigma series pacemakers 
that may fail due to separation of interconnect wires from the hybrid 
circuit may present clinically as loss of rate response, premature 
battery depletion, intermittent or total loss of telemetry, or no 
output.'' In addition, the recall noted that ``Hybrid circuits used in 
this subset of devices were cleaned during manufacture with a 
particular cleaning solvent that could potentially reduce the strength 
of the interconnect wire bond over time.'' Unfortunately, we were not 
made aware of this recall.
    On September 3, 2006, while on vacation, my son took an afternoon 
nap. While I told myself that Robert never takes afternoon naps, I 
thought nothing of it. He was a teenager and he had an active day. 
Robert was not one to complain because he was busy living his life as 
all teenage boys do.
    On the morning of September 14, 2006, Robert's sister and brother, 
Mary and Jeremy, awoke to noises coming from Robert's room at 5:30 a.m. 
Mary walked into his room and then rushed to wake Janis and myself. The 
paramedics spent several hours trying to revive Robert and transported 
him to the hospital where he was pronounced dead.
    On October 3, 2007, we received a letter from Medtronic regarding 
Robert's pacemaker. It had this to say: ``The generator was opened for 
further testing. Analysis found the wire(s) connecting the battery to 
the hybrid had lifted at the bond pads.''
    On June 11, 2009, the FDA issued a Class I recall on the remaining 
Sigma series pacemakers ``due to a separation of wires that connect the 
electronic circuit to other pacemaker components, such as the 
battery.'' This is the same flaw that caused our son's death!
    The loss of a child is the greatest loss that a father and mother 
can suffer. We are born into this world and are told that this is the 
order of life. We marry and have children. We teach our children about 
life and try to protect them. They graduate to many important steps in 
their lives, teenager, young adult, college, love, marriage, and 
children of their own, each step verifying our success as parents, 
bringing us great joy and purpose in our lives. Our children are 
supposed to bury us. They are supposed to grieve their loss of us, not 
us of them. Instead we are left with memories, questions and a heavy 
emptiness that we must carry with us as we learn to live this new life, 
to find peace in our hearts so that we may live again, so that we can 
bring meaning to Robert's life.
    Where do we go from here? How do we find the answers to our 
questions? How do I seek justice for my son? Unfortunately, as a result 
of preemption, and the Riegel decision, we are denied the opportunity 
to discover the answers to these questions. That is why the passage of 
the Medical Safety Device Act is so important to our family.
    Manufacturers of medical devices say that our courts cannot handle 
cases involving medical devices because they are too complex. If that 
is true, then why are our courts capable of handling complex murder 
cases with complex forensic evidence or DNA evidence? Why are the 
courts capable of handling tire defect cases, pharmaceutical cases or 
any other non-medical device cases that harm people? Specifically, as 
to my son's case, what is so complex about the use of a cleaning 
solvent that may have weakened the bond that held my son's device to 
the battery? What is so special about medical devices that their 
manufacturers are granted immunity from being responsible to those that 
they injure or kill?
    My son, Robert, knew of one truth in life at a young age, a truth 
that many of us fail to see early in our lives or for that matter much 
later in our lives. In the tenth grade Robert had to write an essay 
titled ``Who Am I''. He started with: ``Who am I? This is a question I 
can now answer.'' He then wrote down everything that he loved in life, 
coming to one simple conclusion. ``I have many goals in life. But they 
all add up to one big simple one: live happily.''
    This father had taught his son many important lessons in this 
lifetime, justice being one of them. Should Robert have justice in this 
lifetime for the life he cannot live? Saying that justice is giving 
each person what he or she deserves does not take us very far in this 
world. How do we determine what people deserve? What criteria and what 
principles should we use to determine what is due to this or that 
person? That is not for me to answer, it never has been as I am only 
one man. I leave that answer in the hands of others and in the faith of 
our courts. I only ask for my day in court. That is all I can ask for. 
That is all I can hope for. Is that too much to ask in this life time?
    The wrongs that can be committed amongst individuals and groups are 
virtually unlimited. It is the principles of justice, the judges and a 
jury of our peers that apply these principles to determine what is 
right and what is wrong. We only ask that all of us have the 
opportunity for those principles of justice to work in a system that 
those that came before had the wisdom to give us.
    My son died quietly in his room. Robert did not die in a collapsed 
bridge, but his life is no less important. ``Equal Justice Under Law'' 
is the inscription on the west pediment of the Supreme Court building. 
Those words were coined from Chief Justice Melville Fuller when he said 
``no State can deprive particular persons or classes of persons of 
equal and impartial justice under the law.'' It is not the State of 
Minnesota that is depriving us of justice; it is the concept of 
complete corporate immunity and the Riegel decision.
    Thank you for your time and efforts. We can only hope that you will 
restore the law back to what it was before February 2008, or the Riegel 
decision, and once again hold medical device manufacturers responsible 
for the safety of the products that they produce.
            Sincerely,
                                      Mark and Janis Baird,
                                                 Oakdale, MN 55128.
                                 ______
                                 
                                    August 4, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: In May 2009, President Obama called for a reversal of the 
Bush administration policy that prevented consumers from holding 
companies accountable when their products cause harm. Under the Bush 
policy of complete immunity preemption, companies could claim that if a 
Federal agency, like the Food and Drug Administration, approved a 
product, the company could not be sued in State court by injured 
consumers. As the mother of a victim of a faulty medical device, I was 
relieved to hear Obama's remarks, but there is still much work that 
needs to be done to protect Americans.
    My daughter, Katherine ``Katie'' Meyer was engaged to be married 
and just 3 days from her 31st birthday when she died from complications 
from a surgery to remove a defective medical device. She needed the 
device, a heart defibrillator manufactured by Medtronic, because of a 
cardiac condition she developed while undergoing treatment for bone 
cancer. Katie beat cancer, but in the end, it was the device she had 
implanted to save her life that would ultimately end it.
    Katie's lead to her defibrillator fractured, causing three painful 
jolts to shock her body, a sensation similar to being electrocuted, 
three different times. The lead had been recalled after Medtronic 
reported over 120 incidents of fractures and malfunctions to the Food 
and Drug Administration (FDA). Medtronic reported these incidents at 
least 7 months after the company had known about problems with the 
device, but continued to sell and profit from the leads anyway rather 
than report the truth to the FDA.
    In Katie's case, the surgery to remove the faulty lead had 
complications that led to emergency open heart surgery. Further 
complications during the surgery resulted in Katie spending most of the 
next 8 months in a hospital bed, until she passed away in December 
2008. Her medical expenses were nearly $1.5 million, all paid by 
Medicare, or in other words, by the average taxpayer, and all 
associated with complications experienced to remove a defective medical 
device, a device the FDA had recalled. Under the current state of 
preemption, as Medtronic has told our Courts in Minnesota, it has no 
intention of, nor does it have the responsibility to, reimburse 
Medicare for any of these medical expenses related to its defective, 
recalled products.
    Unfortunately, that's not all there is to the story. In February 
2008, in line with the Bush administration's ``preemption'' policy, the 
Supreme Court ruled in Reigel v. Medtronic that, because the FDA had 
approved a medical device through the pre-market approval process, 
families like ours do not have any recourse to hold manufacturers like 
Medtronic accountable when their products cause injury or death.
    Strangely enough, had Katie been harmed by a prescription drug, the 
story would be quite different. Just 1 year later, the Supreme Court 
ruled in Wyeth  v. Levine that patients harmed by prescription drugs 
can hold manufacturers accountable in State courts, creating a major 
double standard between prescription drugs and medical devices. In 
Wyeth, the Court ruled FDA approval of prescription drug labels does 
not provide the manufacturer with complete immunity preemption. So 
right now in America, it is acceptable for medical device companies to 
hurt you, but not acceptable for prescription drug companies. This 
makes no sense. Manufacturers need to be held accountable for the 
safety of their products, whether it is a drug or a device.
    Had Medtronic pulled their faulty product sooner when they first 
knew of the devices' problems, maybe Katie would not have had the 
deadly defibrillator lead. And while nothing will bring Katie back, we 
can do something.
    Thankfully, the Medical Device Safety Act has been introduced in 
Congress. This legislation would extend the protections of the civil 
justice system recognized by the Court in Wyeth v. Levine to medical 
device patients, too.
    I traveled to Washington, DC earlier this year seeking support for 
the Medical Device Safety Act. I am here again for these hearings 
because I am convinced that holding manufacturers accountable for the 
quality of their products is the only way to ensure the safety of 
Americans, like my daughter. Thank you for doing the right thing by 
restoring the rights of injured consumers to hold negligent medical 
device manufacturers accountable when their products cause injury or 
death.
            Sincerely,
                                             Michele Meyer,
                                               Cambridge, MN 55008.
                                 ______
                                 
                                            August 4, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: I have been blessed with very good health. I do not 
typically even get colds or flus. But just as heredity factors are 
often favorable, they can also be unfavorable. Blocked arteries are 
common with the men in my Dad's family. Although I was an active man, 
in April 2001, I suffered a heart attack due to a blockage in the main 
artery to the left side of my heart. Angioplasty was performed and a 
stent was placed, but there was damage to the mitral valve. I continued 
to work and maintain an active life, but in 2005, the cardiologist I 
was assigned to at the time determined that I should have a combination 
pacemaker/defibrillator implanted.
    I did not have any difficulties with the surgery and continued an 
active life. I began to hear about the recall of the Sprint Fidelis 
lead and my records indicated that this was part of my implant. 
Eventually, I was notified that I should schedule an appointment to 
have the implant checked. Following the assessment, I was told there 
appeared to be no concern. Due to my own concerns, however, I asked 
that the lead be replaced. I was told that would not be done because 
Medtronic said that there was only a remote chance that I would ever 
have any problems with the lead. I was scheduled for an assessment 
every 3 months and was given the same response each time I raised my 
concerns.
    I spent the summer of 2008, in an old, small mobile home in the 
mountains near Palm Springs, CA. I've always enjoyed walking and walked 
the mountain roads in and around the village of Idyllwild. I walked 2 
to 6 miles everyday. I returned to my home in the desert on October 1, 
2008. I had an appointment to have the unit checked on October 7 and 
planned to leave for a trip to Iowa on October 8. At 3:30 a.m. on 
October 6, 2008, I awoke from a shock that I thought was a bolt of 
lightning. I went straight up out of bed and received another shock. 
Needless to say, I knew the cause. I walked down the hall to the living 
room to call 911 and was shocked again. The shock knocked the phone 
from my hand. After completing the call, I called my neighbor and left 
a message requesting that she take care of my dogs for the day as I 
would probably be in the hospital. She arrived before the medics and 
witnessed more shocks. When the medics arrived, the device continued to 
shock me, and I was taken to the hospital. By that time, I had received 
19 shocks of 800 volts each, but they ceased and the technician from 
Medtronics arrived 3 hours later and turned off that part of the 
device.
    I spent 3 days in the hospital and a new unit and leads were 
implanted. After returning home, I began to ``panic'' any time I heard 
a sound. I was prescribed anti-anxiety medication and later anti-
depression medication. Four weeks later, I experienced a severe anxiety 
attack and was returned to the emergency room. As time passed, I felt 
that I was making good progress and requested that the physician allow 
me to start lessening the medication. In July 2009, I traveled to Iowa 
for several reunions and began to experience anxiety difficulties. 
After a visit with the physician upon my return home, he restored my 
medications to the original amounts and indicated that I should 
possibly expect to be on them for several years.
    Due to my own curiosity, I went through the medical expenses 
related to this experience from October 6 to March 9. The cost to 
Medicare and supplemental insurance was approximately $168,048.70--all 
incurred as a result of Medtronic's faulty, recalled device. I 
understand that approximately 187,000 recalled Sprint Fidelis leads 
were implanted in the United States. I also understand that the failure 
rate may be as high as 8 percent. If everyone's expenses were 
comparable to mine, could you imagine what this costs Medicare, 
Medicaid, and private health insurers, all of which will be passed on 
to taxpayers and other businesses, to pay for Medtronic's faulty 
products? And this is just for Medtronic's Sprint Fidelis recall. Now 
can you imagine the additional costs associated with all of Medtronic's 
other recalled, defective products or all of the other medical device 
manufacturers who have put defective, now recalled products into the 
market? This type of ``corporate welfare'' is particularly shocking as 
we, as a nation, are currently debating the cost of health care.
    I'm hopeful that the passage of this legislation would make it less 
likely that anyone else will ever have to go through this experience. 
I'm generally considered a very calm, composed, organized person. I 
don't feel that way much of the time since this episode.
    I hope this is helpful in providing you with some understanding of 
what has happened to many people and will happen to many more if 
manufacturers of medical devices are not held accountable for the 
products that they manufacture.
    Thank you.
            Sincerely,
                                             Keith Seifert,
                                            Palm Springs, CA 92262.
                                 ______
                                 
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee: Your work on the Medical Device Safety Act (S. 540/H.R. 
1346), is appreciated. At age 72, I was diagnosed as having 
cardiomyopathy, which is weakness of the muscles on one side of the 
heart, and an ICD (implantable cardiac defibrillator) was implanted in 
my chest in March 2005. It made a big difference in the way I felt. I 
had more energy, did not have the shortness of breath I had experienced 
before and was less tired.
    In April 2008, I received two shocks from the device. While they 
were not as severe as I had expected a shock to be, it was a 
frightening experience, especially since they happened in the night and 
I live alone. The doctors checked the device by way of the phone and 
said I should go to the hospital right away, as the right lead had 
fractured. When the surgeon removed the broken lead, the vein closed 
and the new lead could not be inserted. Two surgeons attempted to 
insert the new lead but could not accomplish it. The ICD was removed 
and another one implanted on the right side of my chest, running the 
new lead across to the heart and bringing the left lead across to the 
ICD. (The original left lead was apparently long enough to do that.) 
This resulted in a 5-hour surgery instead of the anticipated 2-hour 
surgery.
    Except for the usual precautions following such a procedure, i.e., 
not lifting the arm on the side where the ICD is above your shoulder 
for 2-3 weeks, always holding a cell phone on the side opposite of the 
ICD, and never going through the electronic detection devices at 
airports, or other security buildings, everything seemed to be fine for 
a few weeks. At that time, the left lead apparently slipped, and I was 
suddenly receiving ``STEM'' (don't know the medical term) which was a 
constant light shock in my diaphragm. This was extremely uncomfortable, 
making sleep impossible. The only way they could eliminate this was to 
turn the device down so low I was actually not receiving any daily 
therapy. After 2 months, an ultrasound showed my heart function was 
worsening. It was then decided to go with another company's device, 
which was implanted at the end of August. However, when the slipped 
lead was removed, the new one would not go in properly and the next 
day, an epicardial was performed. This procedure was an incision under 
my left breast, attaching the lead to the outside of the heart and 
running it across to the device. Apparently they had to spread my ribs 
to do this, and for about 2 weeks following, each time I bent down, 
turned from the waist, got up out of a chair or sat up to get out of 
bed, I had a very sharp pain in my side, similar to extreme pleurisy. 
Thankfully, since then I have had no complications.
    I am not saying Medtronic is a bad company, but I strongly believe 
any company or any person who produces a product should be held liable 
if it fails. The leads of an ICD actually enter the heart, and we 
should be able to depend on it working properly.
    Again, I greatly appreciate your working on this bill and taking 
the time to listen to those of us who have had frightening experiences 
because of the malfunction of a Medtronic ICD.
                                             Anna L. Navin,
                                               Polk City, IA 50226.
                                 ______
                                 
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
Dirksen Senate Office Building,
U.S. Senate,
Washington, DC 20510.

Hon. Henry Waxman, Chairman,
House of Representatives,
Energy and Commerce Committee,
2125 Rayburn House Office Building,
Washington, DC 20515.

Re: Medical Device Safety Act of 2009

    Dear Chairman Kennedy, Ranking Member Enzi, and Members of the 
Committee on Health, Education, Labor, and Pensions; and Chairman 
Waxman, Ranking Member Barton, and members of the Energy and Commerce 
Committee: The undersigned organizations committed to women's health 
and safety, ask you to prioritize passage of S. 540 and H.R. 1346, the 
Medical Device Safety Act of 2009. This important legislation corrects 
the U.S. Supreme Court's recent decision in Riegel v. Medtronic, 128 S. 
Ct. 999 (2008), by reflecting congressional intent to allow patients 
harmed by negligent medical device manufacturers to access the court 
system in order to obtain compensation and hold companies accountable. 
Immunity should not be given to device manufacturers that fail to 
adequately warn about or prevent device risks; especially when the 
manufacturer knows, or should know, that the device could cause serious 
injuries or death.
    For 30 years, the Federal medical device law and State tort law 
have coexisted without problem, and with the support of many FDA 
officials. In fact, in the important case Wyeth v. Levine, decided on 
March 4, 2009, the U.S. Supreme Court acknowledged the ``longstanding 
coexistence of State and Federal law and FDA's traditional recognition 
of State-law remedies.'' It also noted that ``the FDA long maintained 
that State law offers an additional, and important, layer of consumer 
protection that complements FDA regulation.'' The Court recognized that 
lawsuits are especially important since ``the FDA has limited resources 
to monitor the 11,000 drugs on the market and manufacturers have 
superior access to information about their drugs, especially in the 
postmarketing phase as new risks emerge.''
    The same reasoning should apply to the risky medical devices 
considered in Riegel. Unfortunately, due to the Supreme Court's 
confusion regarding whether Congress intended to preempt claims for 
medical devices, in Riegel, manufacturers of Class III FDA-approved 
medical devices were given complete immunity from liability for 
product-related deaths and injuries. This immunity protection even 
extends to manufacturers who fail to warn the FDA and consumers about 
device problems that arise after obtaining FDA approval. By eradicating 
manufacturer accountability, thousands of patients injured by defective 
devices now have no remedy for their injuries.
    As advocates for women's rights and women's health, we have a 
heightened interest in restoring congressional intent to allow for 
State tort suits by injured women and their families, and believe that 
all persons unfairly harmed by faulty medical devices should have their 
day in court. Medical devices marketed primarily to women, many of 
which relate to women's reproductive health, have a record of safety 
problems. The FDA's handling of these devices, as well as 
manufacturers' development and marketing of the product, can be prone 
to inappropriate corporate pressure and interference.
    As with other drugs and devices, those devices marketed to women 
have caused significant harm, even after FDA approval. A recent report 
by the Center for Justice & Democracy (CJ&D) chronicles the harm that 
FDA-approved drugs and devices have caused women. The CJ&D report, 
entitled The Bitterest Pill: How Drug Companies Fail to Protect Women 
and How Lawsuits Save Their Lives (issued October 2008), details the 
harm caused by drugs and devices marketed only to women, such as the 
Ortho-Evra birth control patch, the Dalkon Shield IUDs and high-
absorbency tampons. The damage has been severe in many instances 
(including heart attacks, blood clots, and death). Moreover, this 
report shows that it is often damages awarded by juries rendering 
verdicts in favor of patients harmed by these devices that have led to 
manufacturers withdrawing unsafe products, or altering the marketing of 
these devices.
    The Medical Device Safety Act will restore women's ability to be 
compensated, and hold device manufacturers accountable. This serves 
three crucial functions: it allows women to mitigate their injuries; it 
helps to deter misleading and careless marketing of devices to women; 
and it provides an extremely important incentive (in addition to the 
FDA's regulatory authority) to manufacturers to strive to monitor and 
improve the safety of their products. The Medical Device Safety Act 
also takes the vital step of making its clarification of congressional 
intent retroactive to the date when Congress enacted the Medical 
Devices Amendment of 1976 (the statute the Supreme Court wrongly 
interpreted to accord immunity to manufacturers) to protect consumers 
whose claims will otherwise be barred by Riegel.
    In the three decades leading up to the 2008 Riegel decision, women 
were able to count both on FDA regulation and State tort law to ensure 
the safety of devices. As supporters of women, we urge you to quickly 
enact the Medical Device Safety Act of 2009.
    We look forward to working with you and your staff to pass this 
very important legislation.
            Sincerely,

Alliance for Justice; American Medical Women's Association (AMWA); 
     Center for Justice & Democracy; Center for Medical Consumers; 
Center for Science in the Public Interest; Clearinghouse on Women's 
        Issues; Dalkon Shield Information Network; DES Action USA; 
Government Accountability Project (GAP); InjuryBoard.com; National 
 Asian Pacific American Women's Forum; National Capital Area Union 
     Retirees National Congress of Black Women; National Consumers 
       League; National Council of Women's Organizations; National 
     Organization for Women (NOW); National Women's Health Network 
     (NWHN); Northwest Women's Law Center; Ovarian Cancer National 
     Alliance; OWL--The Voice of Midlife and Older Women; US PIRG; 
 Women's International Public Health Network; Women's Research and 
                                                 Education Network.
                                 ______
                                 
                               Attachment
   The Bitterest Pill--How Drug Companies Fail to Protect Women and 
                     How Lawsuits Save Their Lives

         (By Amanda Melpolder, Amy Widman and Joanne Doroshow)

                           Executive Summary
    Women across the country have suffered tremendously as a result of 
defective and dangerous drugs and medical devices. History shows that 
many FDA-approved drugs and devices that have caused some of the most 
serious injuries and death have been marketed specifically for women. 
This is largely due to the number of products routinely prescribed to 
otherwise healthy women to control some aspect of their reproductive 
system. In addition, some drugs have had a disproportionate impact on 
pregnant women and their children.
    Many drugs and devices were made safer only after women and their 
families filed lawsuits against those responsible. Sometimes, companies 
that have been hit with large verdicts or settlements act immediately 
to change their unsafe product or practice. Lawsuits also have had a 
tremendously beneficial role spurring medical research and alerting the 
public--and ultimately pressuring regulators--to act on larger health 
risks and problems. As a result, the lives of countless other women 
have been saved.
    In addition, unlike the regulatory scheme, which provides no direct 
benefit to victims, civil cases hold companies directly accountable to 
those whom they have hurt, and provide their victims with compensation 
to help rebuild their lives. Drug company immunity would remove the 
most significant and effective financial consequence to a company for 
choosing to keep a dangerous drug or device on the market.
    The following are some examples that illustrate these points:

                        hazardous birth control
     Ortho-Evra Patch. This weekly birth control patch, 
approved by the FDA in 2002 and marketed to young women with sexy 
television commercials and fashion runway shows, caused blood clots, 
heart attacks and strokes. Both the company and FDA knew of major 
problems with the patch but kept the information quiet until documents, 
including those produced in litigation, forced the information out.
     Dalkon Shield IUD. This IUD caused at least 17 American 
deaths and over 200,000 injuries including pelvic inflammatory disease, 
perforated uteruses, and infertility. The FDA suspended distribution of 
the IUD after 3 years but did not recall existing stock or require the 
company to tell doctors to remove them. For the next 10 years, the 
company continued to promote the device. It took several lawsuits and 
the threat of larger punitive damages awards for the company finally to 
urge women to have the Dalkon Shield removed and offered to finance the 
removal.
     Copper-7 IUD. Like the Dalkon Shield, this IUD led to 
deaths and injuries. It was pulled from the market after numerous 
lawsuits, coupled with the company's inability to obtain products 
liability insurance. Actual injuries and deaths of women, which came 
years before the devices were withdrawn, never had that effect.
     Ortho-Novum 1/80 Birth Control Pill. This pill contained 
extremely high and dangerous levels of estrogen leading to blood clots 
and blood disorders. One woman suffered life-threatening injuries after 
taking this pill. As a result of this case, the manufacturer lowered 
estrogen levels in the pill.
                            lethal hormones
     DES was a synthetic estrogen approved by the FDA to 
prevent miscarriages. DES did not work but instead caused cancer, 
infertility and other serious physical problems for the women who took 
it, and the children they carried. For almost two decades after the 
drug was proven ineffective, manufacturers continued to push the drug 
and expose hundreds of thousands of women and their off-spring to risk. 
Until women started bringing lawsuits, many DES-exposed women did not 
know about the risks they faced.
     Estrogen replacement therapy (ERT) or hormone replacement 
therapy (HRT). Hormones were approved by the FDA and heavily promoted 
by the pharmaceutical industry beginning in the 1960s to women 
experiencing menopause. Yet evidence had existed since the 1930s and 
1940s that estrogen therapy caused cancer. After years of struggle by 
consumer groups and women's health organizations to bring attention to 
the cancer and other risks, in 2002 NIH researchers finally confirmed a 
significant increase in the risk of breast cancer, heart attacks, blood 
clots and strokes. By then, an untold number of women had been harmed 
or killed from being over-prescribed HRT.
                    other harmful drugs and devices
     High-absorbency tampons. These tampons cause ``toxic shock 
syndrome'' resulting in many deaths. A woman died from toxic shock 
syndrome after using super-absorbent tampons, and her family sued. The 
company stopped making these tampons only after the jury's punitive 
damage award.
     Parlodel. The FDA approved this drug in 1980 to suppress 
lactation after birth. It caused heart attacks and strokes. The FDA 
requested the drug's five manufacturers to voluntarily take it off the 
market. One company refused and for the next 5 years, continued to 
promote the drug and persuaded hospitals to prescribe it. Only after a 
large jury award and petitions by consumer groups to force the FDA to 
act, did the company withdraw the drug from the market.
     Accutane. Accutane is an acne drug to which the FDA gave 
fast track approval despite knowing it caused severe birth defects as 
serious as Thalidomide if taken by pregnant women. As a result of the 
company's continuously failed policies to prevent women who were or 
could become pregnant to take the drug, hundreds of severely deformed 
babies have been born. Juries have now started to hold the company 
accountable in these cases.
                                 ______
                                 
                         LETTERS OF OPPOSITION
Re: Medical Device Safety Act of 2009

    To Whom It May Concern in the U.S. Senate and the House of 
Representatives: I am writing to voice my opposition to the proposed 
``Medical Device Safety Act of 2009.''
    The proposed H.R. 1346 and S. 540, ``Medical Device Safety Act of 
2009'' will have little to no impact on patient safety. Instead, it 
substitutes a strong, consistent, expert-based FDA regulatory system 
with a lawsuit-driven, 50 different State-court-based compliance scheme 
based on litigation and the resulting cost of multi-jurisdictional 
compliance. In other words, chaos would replace the current system at 
the expense of physicians and patients in favor of trial lawyers' who 
profit from litigation at the expense of patient access to health care 
and new technology.
    It is my belief that eliminating preemption protection for medical 
devices will impact:

    1. Patient access and public health;
    2. Medical technology innovation rates;
    3. Industry employment; and
    4. Government expenses as a healthcare payer, regulator and 
judicial funder.

    Good patient care is of utmost importance to me and I believe that 
this legislation will not improve the quality of treatment for those 
seeking medical care.
            Sincerely,

Samuel W. Wiesel, M.D.; John Klimkiewicz, M.D.; Paul Cooper, M.D.; 
     Brett Wiesel, M.D.; Brian G. Evans, M.D.; John Delahay, M.D.; 
   Scott Edwards, M.D.; Mark Zawalsky, M.D.; Benjamin Osborne, M.D.
                                 ______
                                 
                                            March 31, 2009.
Hon. Harry Reid,
U.S. Senate,
Washington, DC 20510.

Hon. Mitch McConnell,
U.S. Senate,
Washington, DC 20510.

Hon. Nancy Pelosi,
U.S. House of Representatives,
Washington, DC 20515.

Hon. John Boehner,
U.S. House of Representatives,
Washington, DC 20515.

    Dear Majority Leader Reid and Speaker Pelosi, Minority Leader 
McConnell and Minority Leader Boehner: As a group, we represent 
thousands of individuals and companies that develop medical technology 
as well as the venture capitalists who help to provide the essential 
financing for innovations that save lives and provide greater value in 
health care. We are writing to express our concerns about the policy 
implications of the Medical Device Safety Act (S. 540 & H.R. 1346).
    We believe this legislation does not advance patient safety, will 
limit patient access to lifesaving medical technologies, increase 
health care costs by delaying innovation, and dilute the regulatory 
effectiveness of the FDA.
    The Medical Device Amendments of 1976--the law that helped to 
create the modern medical device industry has balanced the interests of 
patient safety and patient access to medical technology extremely well 
for more than three decades. Only a subset of all medical devices 
reviewed by the FDA each year is subject to preemption. These products 
are developed to treat the most complex and most debilitating 
conditions and have been subjected to an assessment of safety and 
effectiveness by FDA and specific regulatory requirements including 
post-marketing surveillance. In addition, the preemption protection is 
not blanket immunity--there are circumstances under which patients can 
and have been suing manufacturers.
    The impact of removing preemption on the integrity of this process 
and our industry will be significant.
             need for a stronger, central federal authority
    As former FDA Chief Counsel and Carter-appointee Richard Cooper 
recently testified before Congress:

          ``Totally unpreempted regulation through product-liability 
        litigation would erode FDA's uniform national regulatory 
        system, would lead to inconsistent requirements from State to 
        State and jury to jury, would create powerful incentives for 
        inclusion in labeling of numerous additional warnings that 
        plaintiffs' lawyers persuaded juries and judges to impose and 
        thereby would diminish the overall effectiveness of labeling in 
        guiding physicians in the proper use of drugs and devices.''--
        (Statement before the Senate Committee on the Judiciary, June 
        11, 2008)

    The creation of a lawsuit-driven, State court-based compliance 
scheme imposes two potentially significant costs on our industry: 
multi-jurisdictional compliance, as well as the additional costs of 
mass tort litigation.
    This flawed legislation contemplates a regulatory scheme that would 
undermine the safety and effectiveness determinations of the FDA with 
respect to complex medical devices--for reasons that may or may not be 
medically and scientifically sound. The manufacturer of a product with 
the potential to save millions of lives, but with known and properly 
disclosed risks, will no longer be able to create tomorrow's next wave 
of medical technology on the fair playing field of a national standard 
set and enforced by the FDA.
    It is much more effective to continue to make the FDA more 
independent, stronger and accountable than it is to allow States to 
create a patchwork of regulations that preempt innovation and fail to 
protect the safety and rights of all Americans.
                           impact on patients
    Beyond the harm to innovation, Congress should also consider the 
harm done to the health and rights of patients who will no longer be 
assured a national standard for safety under the FDA. Eliminating 
preemption will create a patchwork system of State laws and regulations 
that may help some citizens and leave others without options depending 
on where they live.
    For nearly 30 years, the current system for regulating medical 
technology has worked extremely well in three areas: it has fostered 
the development of an industry in which the United States has 
unparalleled leadership; it has fostered innovations that have safely 
enhanced and prolonged patients' lives; and it has provided avenues for 
recovery in the tort system for injured patients.
                       impact on small businesses
    A significant percentage of these costs will be borne by small 
businesses. For example, from 2003-2007, nearly one-in-five 
applications for pre-market approval were submitted by a small 
business. These small businesses are not only catalysts for growth and 
innovation within our industry, but in these challenging economic 
times--when access to capital already threatens their business model--
their success is critical to our Nation's overall economic recovery.
    These small companies develop cutting-edge technologies such as 
devices to close heart defects, non-invasively treat uterine fibroids, 
non-invasively manage diabetes, better detect fetal heartbeats, and 
destroy contaminated needles. Such products allow for the better 
management of chronic disease, the better treatment of expectant 
mothers and their babies, and the better management of cardiovascular 
diseases such as strokes.
    If preemption is rolled-back, many of these businesses will face 
two equally unappealing alternatives. They can bring products to market 
with the harbinger of unfettered tort litigation on the horizon, a 
prospect nearly guaranteed to drive higher insurance premiums, or they 
can shelve the product. The notion, suggested by some, that only unsafe 
products would go on the shelf is nonsensical. Venture capital firms 
will be less willing to fund even the most promising and safe 
breakthroughs unless there is the level playing field of a national 
standard for safety. In this case, innovation wouldn't be shelved, it 
would never get off the drawing board.
    We would urge you to exercise your respective leadership positions 
in Congress to ensure that no action is taken on this harmful 
legislation--and that the FDA is given the resources it needs to 
guarantee the health and safety of the Nation.
            Sincerely,

        Advanced Medical Technology Association (AdvaMed); Arizona 
   BioIndustry Association; BioOhio; BIOCOM; California Healthcare 
   Institute (CHI); Florida Medical Manufacturers' Consortium; The 
      Health Industry Council; HealthCare Institute of New Jersey; 
Indiana Health Industry Forum; Indiana Medical Device Manufacturers 
  Council (IMDMC); LifeScience Alley; Massachusetts Medical Device 
        Industry Council (MassMEDIC); Medical Device Manufacturers 
 Association; MedTech; National Venture Capital Association; North 
Carolina Biosciences Organization; Texas Healthcare and Bioscience 
      Institute; Washington Biotechnology & Biomedical Association.
                                 ______
                                 
                                        RetireSafe,
                                      Washington, DC 20006,
                                                     July 31, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy and Ranking Member Enzi: On behalf of 
Retiresafe, an organization of over 400,000 supporters dedicated to 
preserving and enhancing the options, benefits and lives of older 
Americans, I write to express our strong opposition to the so-called 
``Medical Device Safety Act of 2009'' (S. 540).
    We are concerned that S. 540 would threaten the preeminence of our 
health care system by needlessly subjecting medical device 
manufacturers to a flood of costly, burdensome and meritless lawsuits 
without providing any real safety benefits to American consumers.
    S. 540 is intended to undo long-standing Federal law that prevents 
lawsuits regarding certain innovative medical devices that have gone 
through the FDA's rigorous safety review procedures. If S. 540 is 
enacted, juries will decide which innovative medical devices should be 
available on the market--instead of leaving that decision to the 
medical experts at the FDA.
    This outcome would be devastating for many senior citizens who rely 
on cutting-edge medical devices and technologies--such as heart valves, 
pacemakers, arterial stents, and orthopedic joints--so that they can 
live longer, healthier and more comfortable lives. By encouraging 
lawsuits against FDA-approved medical devices, S. 540 would discourage 
companies from investing in innovative devices that are critically 
needed by senior citizens and other Americans. Put simply: this 
legislation would slow the pace of medical breakthroughs that not only 
save lives, but also improve the quality of life for our aging 
population.
    For these reasons, we strongly urge you to oppose the Medical 
Device Safety Act of 2009.
            Sincerely,
                                            Thair Phillips,
                                             President, Retiresafe.
                                 ______
                                 
                         American Military Society,
                                  Upper Marlboro, MD 20774,
                                                    August 3, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy and Ranking Member Enzi: On behalf of the 
veterans who we collectively represent, many of whom are recipients of 
life saving and life improving medical devices, we write to express our 
strong opposition to the ``Medical Device Safety Act of 2009'' (S. 
540), which would limit access to innovative medical devices and 
technologies that can dramatically improve quality of life for aging 
and ailing veterans.
    Under the guise of improving the safety of medical devices, S. 540 
would repeal a Federal law that prevents State-court lawsuits over 
medical devices that have been approved under the FDA's stringent 
safety and efficacy review standards. The legislation would thus invite 
personal-injury lawyers to barrage medical device manufacturers with 
costly, meritless lawsuits, diverting resources away from essential 
research and development of medical breakthroughs and discouraging 
manufacturers from investing in new, innovative medical devices and 
technologies.
    Deciding which new medical devices are safe enough to be sold in 
this country is a job for doctors and scientists at the FDA--not 
juries. By encouraging lawsuits against medical-device makers and 
stifling innovation in the critical area of medical technology, S. 540 
will hamper efforts to deliver cutting-edge, lifesaving medical devices 
and technologies to our Nation's veterans.
    For these reasons, we ask that you oppose the Medical Device Safety 
Act of 2009.
            Sincerely,

   The American Military Society; The Army and Navy Union, U.S.A., 
       Inc.; Military Order of Foreign Wars; U.S. Veterans Hospice 
                                                         Committee.
                                 ______
                                 
                      Blinded Veterans Association,
                                 Washington, DC 20001-2694,
                                                    August 3, 2009.
Hon. Ted Kennedy, Chairman,
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
428 Senate Dirksen Office Building,
Washington, DC 20510.

Re: The Medical Device Safety Act of 2009

    Dear Chairman Kennedy: On behalf of the Blinded Veterans 
Association (BVA), the only national veterans' organization 
congressionally chartered and exclusively dedicated to blinded veterans 
and their families for 64 years, I write to express our concern and 
opposition to H.R. 1346 and S .540, the Medical Device Safety Act of 
2009.
    BVA represents over 12,000 members and families, many of whom are 
recipients of life saving and life improving medical devices including 
(among other things) heart stents, orthopedic joints, neuro-stimulators 
and retinal implant research that in early clinical trials offer 
promise of restoration of partial vision. We are very concerned that 
enactment of this legislation as written, which would throw open State-
based litigation against the medical device manufacturing community and 
weaken FDA safety approval and technology research review, further 
stifle innovation, and ultimately limit the availability of many 
critical medical devices that are of vital importance to advancing the 
health and improving the quality of life of our disabled veterans.
    While BVA has often opposed efforts to reduce the access of 
individuals to remedies for grievances by means of resort to the 
Federal Courts, in this case we believe that such a State-torts 
expansion would be detrimental to the interests of future medical 
technology research, particularly small biotechnology companies that 
would face increased risk of State common-law courts and multitude of 
more State regulations.
    Many of our members hold hope for these new medical devices to 
improving their quality of life from their service-related visual 
injuries and some have benefited from significant neuro-visual-
technological breakthroughs in this field. But legislation resulting in 
increased litigation against biotechnology manufacturers of these 
devices, will only diminish future advances in this area.
    We therefore strongly urge you to oppose the Medical Device Safety 
Act of 2009 as written and request Class III FDA devices are preempted 
by common-law claims. BVA appreciates your support of veterans' issues 
in the past and requests that you strongly consider the negative impact 
of this proposed legislation on future research and development.
            Sincerely,
                                    Thomas Zampieri, Ph.D.,
                                Director, Government Relations BVA.
                                 ______
                                 
                   U.S. Veterans Hospice Committee,
                                 Washington, DC 20005-3514,
                                                    August 3, 2009.
Hon. Edward Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Senate Dirksen Office Building,
Washington, DC 20510.

Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
428 Senate Dirksen Office Building,
Washington, DC 20510.

Re: The Medical Device Safety Act of 2009

    Dear Chairman Kennedy: On behalf of the U.S. Veterans Hospice 
Committee, I am writing this letter to express our opposition to S. 
540, the Medical Device Safety Act of 2009. If enacted, we believe this 
legislation will spark costly lawsuits against device manufacturers, 
limiting the availability of many critical medical devices important to 
advancing the health and improving the lives of our constituency. We 
urge you to reject this misguided legislation.
    The U.S. Veterans Hospice Committee is dedicated to educating the 
American public about the plight of the nearly 70,000 veterans of U.S. 
military service who are simultaneously homeless and suffering a 
chronic or terminal illness. It is our mission to advocate policies in 
the public interest that serve this constituent population. Our 
opposition to this legislation is driven by our strong belief in the 
need for greater access by these veterans to the many medical devices 
used in end-of-life hospice care settings.
    Thank you for the opportunity to express our views on this 
important matter.
            Sincerely yours,
                                         Gerald B. Johnson,
                                                Executive Director.

                          The 60 Plus Association,*
                                      Alexandria, VA 22314,
                                                    August 3, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Michael B. Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy and Ranking Member Enzi:  On behalf of the 60 
Plus Association, a non-partisan seniors advocacy group, I write to 
express our strong opposition to the so-called ``Medical Device Safety 
Act of 2009'' (S. 540).
---------------------------------------------------------------------------
    * The 60 Plus Association is a 17-year-old nonpartisan organization 
working for death tax repeal, saving Social Security, affordable 
prescription drugs, lowering energy costs and other issues featuring a 
less government, less taxes approach. 60 Plus calls on support from 
nearly 5.5 million citizen activists. 60 Plus publishes a magazine, 
SENIOR VOICE, and a Scorecard, bestowing awards on lawmakers of both 
parties who vote ``pro-senior.'' 60 Plus has been called ``an 
increasingly influential senior citizen's group.''
---------------------------------------------------------------------------
    The 60 Plus Association is a network of more than 5.5 million 
seniors committed to improving the quality and accessibility of health 
care. We are concerned that S. 540 would threaten the preeminence of 
our health care system by needlessly subjecting medical device 
manufacturers to a flood of costly, burdensome and meritless lawsuits 
without providing any real safety benefits to American consumers.
    S. 540 is intended to undo long-standing Federal law that prevents 
lawsuits regarding certain innovative medical devices that have gone 
through the FDA's rigorous safety review procedures. If S. 540 is 
enacted, juries will decide which innovative medical devices should be 
available on the market--instead of leaving that decision to the 
medical experts at the FDA.
    This outcome would be devastating for many senior citizens who rely 
on cutting-edge medical devices and technologies--such as heart valves, 
pacemakers, arterial stents, and orthopedic joints--so that they can 
live longer, healthier and more comfortable lives. By encouraging 
lawsuits against FDA-approved medical devices, S. 540 would discourage 
companies from investing in innovative devices that are critically 
needed by senior citizens and other Americans. Put simply: this 
legislation would slow the pace of medical breakthroughs that not only 
save lives, but also improve the quality of life for our aging 
population.
    For these reasons, we strongly urge you to oppose the Medical 
Device Safety Act of 2009.
            Sincerely,
                                           James L. Martin.
                                 ______
                                 
                                3800 Resevoir Road,
                                      Washington, DC 20007,
                                                    August 3, 2009.
Hon. Edward M. Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Re: S. 540

    Dear Chairman Kennedy: On behalf of the many physicians I am 
associated with, we are writing to express our strong opposition to the 
so-called ``Medical Device Safety Act of 2009'' (S. 540).
    These physicians are committed to improving the quality and 
accessibility of health care to all Americans. We are concerned that S. 
540 would threaten the preeminence of our health care system by 
needlessly subjecting medical device manufacturers to a flood of 
costly, burdensome and meritless lawsuits without providing any real 
safety benefits to the American consumer.
    S. 540 is intended to undo long-standing Federal law that prevents 
lawsuits regarding certain innovative medical devices that have gone 
through the FDA's rigorous safety review procedures. If S. 540 is 
enacted, juries will decide which innovative medical devices should be 
available on the market--instead of leaving that decision to the 
medical experts at the FDA.
    This outcome would be devastating for many seniors, veterans and 
American citizens who rely on cutting edge medical devices and 
technologies--such as heart valves, pacemakers, arterial stents, and 
orthopedic joints--so that they can live longer, healthier and more 
comfortable lives. By encouraging lawsuits against FDA-approved medical 
devices, S. 540 would discourage companies from investing in innovative 
devices that are critically needed by senior citizens, veterans and 
other Americans. Put simply: this legislation would slow the pace of 
medical breakthroughs that not only save lives, but also improve the 
quality of life for our aging population.
    For these reasons, we strongly urge you oppose the Medical Device 
Safety Act of 2009.
            Sincerely,
                                     John Klimkiewicz, M.D.

(On behalf of: Stephen Baker, M.D.; Scott Edwards, M.D.; Brett Wiesel, 
M.D.; Mark Zawalsky, M.D.; Benjamin Osborne, M.D.; John Delahay, M.D.; 
Brian G. Evans, M.D.; Samuel W. Wiesel, M.D.; and Paul Cooper, M.D.)
                                 ______
                                 
                                            August 4, 2009.
Hon. Edward Kennedy, Chairman,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.

Hon. Mike Enzi, Ranking Member,
Committee on Health, Education, Labor, and Pensions,
U.S. Senate,
Washington, DC 20510.
    Dear Chairman Kennedy and Ranking Member Enzi: On behalf of the 
undersigned companies and related organizations, and the thousands of 
members they collectively represent, we write to again express our 
strong opposition to S. 540, the so called ``Medical Device Safety Act 
of 2009,'' which will be the subject of a hearing that has been noticed 
by the committee for August 4, 2009. As many of us raised in the 
attached letter to Congress dated March 30, 2009 (attached below), this 
misguided legislation would, among other things, stifle innovation, 
compromise the safety of American consumers, and threaten the 
preeminence of the U.S. medical device industry in the world community.
    We are particularly concerned that this legislation represents one 
of several troubling attempts to dilute the preemptive authority of the 
Federal Government to regulate interstate commerce. As we collectively 
seek to restore our economy to strong fiscal health, we are concerned 
about efforts to devolve regulatory authority to State tort systems. 
Such efforts, if successful, would inevitably lead to more litigation 
and less opportunity for American businesses to stimulate job creation 
in this country.
    For these reasons and others that are detailed in the attached 
letter (below) from March, we strongly urge you to oppose this 
legislation.
            Sincerely,

     Medtronic, Inc.; Abbott; Acorn Cardiovascular; AdvaMed; Alcon 
     Laboratories, Inc.; American Healthcare Association; American 
      Insurance Association; American Tort Reform Association; ATS 
   Medical, Inc.; B. Braun Medical Inc.; Bayer Healthcare; Beckman 
    Coulter; Biomet, Inc.; Boston Scientific Corporation; Business 
Roundtable; Cardinal Health; CaridianBCT, Inc.; Celera Corporation; 
    Covidien; Edwards Lifesciences, LLC; Eli Lilly and Company; GE 
  Healthcare; Greatbatch, Inc.; HemCon Medical Technologies, Inc.; 
          Hill-Rom; Hollister Incorporated; Hospira, Inc.; Integra 
LifeSciences Corporation; Johnson & Johnson; LifeCell Corporation, 
      a KCI Company; 3M; Medical Device Manufacturers Association; 
    National Association of Manufacturers; National Association of 
 Mutual Insurance Companies; RoundTable; Smith & Nephew, Inc.; St. 
  Jude Medical; STERIS Corporation; U.S. Chamber of Commerce; U.S. 
              Institute for Legal Reform; Welch Allyn; Zimmer, Inc.
                                 ______
                                 
                               Attachment
                                            March 30, 2009.

    To the Members of the United States Congress: On behalf of the 
undersigned companies and organizations and the thousands of members 
they collectively represent, we are writing to express our concern with 
what is likely a series of efforts to dilute the preemptive authority 
of Congress to regulate interstate commerce. As we collectively seek to 
restore our economy to strong fiscal health, we are especially 
concerned about efforts to devolve regulatory authority to State tort 
systems.
    These systems serve an important role in redressing wrongs and 
compensating injured persons, but they are a poor proxy for a strong, 
uniform regulatory environment that sends clear prospective signals to 
businesses and consumers about the integrity of the products they 
develop, market, sell, and buy. The creation of a lawsuit-driven, 
State-court-based compliance scheme would impose potentially 
significant costs on our companies and members in the form of State-
based litigation and the cost of multi-jurisdictional compliance. 
Moreover, we believe that such State-based litigation would limit the 
availability of many, including life-saving, products for Americans.
    Given this broad concern, we write specifically to express 
opposition to H.R. 1346 and S. 540, the ``Medical Device Safety Act of 
2009,'' which represents the opening salvo of a broader campaign by 
personal injury lawyers to replace uniform Federal regulation with tort 
litigation. This bill seeks to undo the U.S. Supreme Court's 2008 
nearly unanimous ruling in Riegel v. Medtronic, which held that certain 
State tort suits based on injuries from medical devices that were 
approved through the FDA's premarket approval (PMA) process are 
expressly preempted by Federal law. See Riegel v. Medtronic, 128 S. Ct. 
999 (2008). As set forth below, we believe that enacting legislation to 
repeal the preemption provision at issue in the Riegel case would 
stifle innovation, compromise the safety of American consumers, and 
threaten the preeminence of the U.S. medical device industry in the 
world community.
    In 1976, Congress enacted the Medical Device Amendments Act (MDA) 
to create a uniform national process for evaluating the safety and 
efficacy of medical devices. Prior to enactment of the MDA, medical 
device manufacturers were subject to various State regulatory regimes 
and were frequently sued over alleged device failures in State courts 
around the country. Congress enacted the MDA and incorporated an 
express preemption provision in that statute in response to this 
hopelessly complex regulatory environment. Thus, the MDA ensures 
intensive Federal review of new and innovative medical devices and 
provides manufacturers with clear guidance from a single source, the 
Food and Drug Administration (FDA), on the safety and efficacy 
standards applicable to new medical devices. Under the MDA's uniform 
regulatory environment, medical innovation has thrived and patients 
have received cutting-edge medical technologies like pacemakers, 
arterial stents, and heart valves.
    Last year, the Supreme Court confirmed in Riegel the MDA's uniform 
regulatory framework by holding in an 8-1 decision that the express 
preemption clause in the MDA limited certain State tort lawsuits 
against medical devices that have gone through PMA review, a 
particularly rigorous FDA approval process. The decision clearly allows 
claims to move forward in a variety of instances including in cases 
where the device was not manufactured to specification, or a company 
mislead FDA. The Medical Device Safety Act of 2009 seeks to undo the 
Riegel decision by amending the MDA to revoke preemption with respect 
to such medical devices.\1\
---------------------------------------------------------------------------
    \1\ The Supreme Court's recent decision in Wyeth v. Levine--which 
rejected a claim of implied preemption with respect to prescription 
drugs--has no relevance to the pending legislation. The question in 
Wyeth was whether certain FDA regulation had preemptive effect absent 
express preemption by Congress. The Wyeth Court did not make any policy 
judgments regarding whether and to what extent preemption of State tort 
claims against either drug or medical device manufacturers was 
appropriate.
---------------------------------------------------------------------------
    We strongly urge you to reject the proposed legislation for several 
reasons:
    First, the pending legislation would stifle innovation of new 
medical devices thus limiting the availability of lifesaving 
technologies. As it currently stands, the PMA approval process Congress 
established in 1976 (which is specific for certain medical devices) 
benefits both manufacturers and consumers. Consumers are protected by a 
rigorous safety review procedure conducted by expert regulators. The 
approval process is an intense one, during which the FDA typically 
spends over a thousand hours reviewing volumes of clinical and safety 
data about a proposed device. Even after a device is approved, 
regulatory review is not complete. Rather, the manufacturer is required 
to report to the FDA on any changes to the device and provide a summary 
of new information from scientific literature and unpublished reports 
about that device. This regulatory scheme assures that only products 
whose benefits to potential patients outweigh their risks can go to 
market. Although the process is extremely burdensome on manufacturers, 
the MDA's express preemption provision assures that manufacturers that 
complete the PMA process will not be subject to later tort liability. 
This balance of intense regulation, coupled with protection from State 
law liability, has fostered the invention and marketing of countless 
devices that have saved American lives.
    The proposed legislation would upend this comprehensive regulatory 
framework. Many manufacturers would inevitably determine that it is too 
costly to go through the PMA approval process and still be forced to 
comply with 50 different State tort regimes. Thus, they will simply 
stop developing new, innovative medical devices, preferring to market 
older technologies for which the litigation risks are known. Such a 
result would hurt not only manufacturers and their employees but it 
would also prevent patients from gaining access to life-saving, 
cutting-edge medical devices.
    Second, the proposed legislation, notwithstanding its title, would 
provide no real safety benefits to American consumers. Instead, the 
result of the legislation would be to replace the judgment of expert 
regulators with that of lay juries. Under the current regime, FDA is 
able to weigh the risks and benefits of a particular device, and to 
assure that when the former are outweighed by the latter, the device 
reaches the market. Replacing expert regulators with lay jurors would 
result in conflicting and suboptimal regulation and ultimately prevent 
important medical technologies from reaching the patients who need 
them.
    Finally, the pending legislation would impose significant 
additional costs on American business at a time of economic crisis. 
Many medical device manufacturers are relatively small companies 
without large research and development budgets. These companies rely on 
often-scarce, venture capital to fuel innovation and cannot afford the 
risk of increased lawsuits. See S. Rep. No. 33, 94th Cong., 2d Sess. 18 
(1976) (noting the importance of the MDA for ``small manufacturer[s] of 
medical devices,'' with ``limited financial resources''). In fact, in 
2002, Congress created a mechanism for small device manufacturers to 
receive a discount on the application fees associated with a PMA. In 
the last 5 years, 20 percent of all PMA applications were from small 
businesses. For more than 30 years, the United States has been a leader 
in innovation in medical technology. Now is not the time to threaten 
the viability of an important American industry--especially one that 
has saved countless American lives.
    For all of these reasons, we strongly urge you to oppose the 
Medical Device Safety Act of 2009.
            Sincerely,

 Medtronic, Inc.; Abbott; Acorn Cardiovascular; AdvaMed; Aesculap, 
        Inc.; American Health Care Association; American Insurance 
 Association; American Tort Reform Association; ATS Medical, Inc.; 
B. Braun Medical Inc.; Bayer; Beckman Coulter; Biomet, Inc.; Boston 
    Scientific Corporation; Business Roundtable; C. R. Bard, Inc.; 
        Cardinal Health; CaridianBCT, Inc.; ConvaTec Inc.; Edwards 
      Lifesciences; Eleme Medical, Inc.; Eli Lilly and Company; GE 
 Healthcare; Hill-Rom; Hollister; Hospira, Inc.; Ikaria; Johnson & 
 Johnson; 3M; Medical Device Manufacturers Association; MicroCube, 
     LLC; National Association of Manufacturers; RetireSafe; Roche 
 Diagnostics; Sleep Solutions; Smith and Nephew; St. Jude Medical, 
  Inc.; STERIS Corporation; U.S. Chamber of Commerce; U.S. Chamber 
    Institute for Legal Reform; Vietnam Veterans of America; Welch 
                                                Allyn; Zimmer, Inc.

    [Whereupon, at 4:25 p.m., the hearing was adjourned.]

                                   

      
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