Mass Tort Litigation Blog

Altria v. Good: First Mass Tort Ruling of the Obama Era?

Yesterday, the Supreme Court ruled in Altria Group v. Good that the federal cigarette labeling statute does not preempt claims that tobacco companies violated state consumer protection laws in their marketing of light cigarettes.  Here's the Supreme Court's opinion.

Today, the New York Times ran an editorial lauding the decision, calling it a "major and well-deserved setback" for the tobacco industry, and suggesting that the ruling may indicate a shift away from the Court's pro-defendant rulings on civil litigation issues:

It was a welcome departure for a court that has been far too deferential to business. We hope it signals that the justices are moving toward a more balanced approach to business cases.

The editorial noted that until this case, the Supreme Court's recent rulings "have made it harder for ordinary Americans to hold corporate wrongdoers accountable."  The interesting thing was how the editorial then linked the decision to "troubled economic times," the "election returns," and the "national mood":

In these troubled economic times, as the nation is still trying to come to terms with the enormous damage done by the deregulation of the mortgage industry, the national mood is turning strongly toward greater regulation. It has often been observed that the Supreme Court has a tendency to follow the election returns, and it may have done so here. With this decision, the court might be indicating a greater appreciation that when companies do wrong, there needs to be a legal means of holding them accountable.

It remains to be seen what the Supreme Court will do in Wyeth v. Levine and other cases on preemption, punitive damages, and other key issues facing mass tort defendants and plaintiffs.  As far as the White House is concerned, although Barack Obama clearly is not a tort reformer in the mold of George Bush, he has avoided being closely identified with trial lawyer interests and made a point during the campaign of emphasizing that he voted for CAFA in the Senate.  But it is undeniable that the "national mood" has shifted, and it will be interesting to see whether this latest tobacco ruling heralds a Supreme Court shift in the same direction.  And even more interesting to see what happens to such rulings if President Obama gets to name a new Justice or two.

For other commentary on the Court's decision, see Pharmalot, Point of Law, WSJ Law Blog, Drug & Device Law Blog, and Overlawyered.

HME

Analysis of the Latest Williams Tobacco Appeal to the Supreme Court

Adam Liptak of the New York Times breaks down the issues in Justices Look Anew at Case in Which Oregon Court Has Twice Rebuffed Them.  Here's an excerpt:

The United States Supreme Court takes its name seriously, and it expects lower courts to follow its instructions. But the Oregon Supreme Court has twice refused to reduce a $79.5 million punitive damages award in the face of increasingly blunt directions from the nation's highest court.

When the United States Supreme Court agreed to hear the Oregon case for a third time in June, many legal experts assumed it did so to teach the lower court a lesson about which court has the last word.

''The Oregon Supreme Court really has continued to be defiant in this case,'' Benjamin C. Zipursky, a Fordham law professor, said.

BGS

Tom Baker on Liability Insurance at the Tort-Crime Boundary

Professor Tom Baker (University of Pennsylvania) has posted on NELLCO his manuscript, Liability Insurance at the Tort-Crime Boundary.  Here's the abstract:

This essay explores how liability insurance mediates the boundary between torts and crime. Liability insurance sometimes separates these two legal fields, for example through the application of standard insurance contract provisions that exclude insurance coverage for some crimes that are also torts. Perhaps less obviously, liability insurance also can draw parts of the tort and criminal fields together. For example, professional liability insurance civilizes the criminal law experience for some crimes that are also torts by providing defendants with an insurance-paid criminal defense that provides more than ordinary means to contest the state’s accusations. The crime-tort separation in liability insurance cannot be explained by economic incentives, alone. Morality matters, too. The fact that liability insurance sometimes provides coverage for criminal defense costs suggests that liability insurance institutions could cover a broader swath of crime torts than they do, providing further support for the claim that consequentialist reasoning, alone, cannot explain the observed relationship between liability insurance, torts, and crime. The tort-crime separation reflects and reinforces a concept of liability insurance as protection for defendants, rather than as a fund for victims. In turn, this concept of insurance reflects and reinforces an understanding of tort claims as encounters between particular plaintiffs and defendants, rather than as a price setting or loss spreading insurance mechanism.

BGS

Supreme Court to Hear Asbestos-Related Suit

The Supreme Court granted cert today on whether a federal bankruptcy court can block private suits seeking damages for injury and death caused by asbestos.  The consolidated cases are Travelers Indemnity v. Bailey, et al. (08-295) and Common Law Settlement Counsel v. Bailey, et al. (08-307).  SCOTUSblog has links to the Second Circuit's opinion and the petitions for certiorari.  The question presented is:

Whether the court of appeals erred in categorically holding that bankruptcy courts do not have jurisdiction to enter confirmation orders that extend beyond the "res" of a debtor's estate, despite this Court's recent ruling that "[t]he Framers would have understood that laws 'on the subject of Bankruptcies' included laws providing, in certain respects, for more than simple adjudications of rights in the res," Central Virginia Community College v. Katz, 546 U.S. 356, 370 (2006), and whether the court of appeals compounded this error by: (a) failing to apply as written a federal statute (11 USC §§ 524(g) and (h)), by limiting the scope of relief in a manner that is contrary to the express terms and purposes of that statute; (b) failing to give effect to the Supremacy Clause and holdings of this Court that federal bankruptcy relief cannot be overridden by rights alleged to have been created under state law; and (c) failing to respect important principles of finality and repose, and the express provisions of § 524(g), by failing to approve a federal court's enforcement of a confirmation order that was affirmed over two decades ago on direct appeal.

ECB

Samuel Issacharoff on Private Claims & Aggregate Rights

Professor Samuel Issacharoff (NYU) has posted on NELLCO his manuscript, Private Claims, Aggregate Rights, which is forthcoming in the Supreme Court Review.  Here's the abstract:

In an odd set of procedure opinions last Term, the Supreme Court found itself confronted with the inadequacy of the federal rules for dealing with the sprawling array of aggregate disputes that currently engage the courts. Taken on their own terms, the three cases - Sprint Communications Co., L.P. v APCC Services, Inc, Republic of the Philippines v Pimentel, and Taylor v Sturgell - broke little new ground. Even the topics presented - real parties in interest, required parties, and non-party preclusion - are hardly the stuff of future debates over potential Supreme Court nominees.

Nonetheless, each of these cases presented privately held legal claims that could not be litigated to resolution absent aggregation with the claims of other parties. In each case, the formal workings of the procedural system were inadequate to the task. This Article contrasts the formalism of federal court procedural doctrines to the flexibility of bankruptcy workouts for asbestos claims and court-supervised private settlements, as in the recent Vioxx settlement. In the latter examples, courts have used more flexible principles of equity to oversee privately-ordered mass settlements. The article explores both the benefits and the limits of such private ordering in order to highlight the limitations on court-administration of mass harm litigation.

BGS

The Mass Tort Reward: Miley Cyrus

E!online reports that Mark Lanier, of Vioxx litigation fame, hired Miley Cyrus to play his firm's holiday party, which included 7,000 guests.  No word on whether Cyrus's father, country singer Billy Ray Cyrus, lead the Vioxx plaintiffs in a chorus of "My Achy Breaky Heart."

BGS

Supreme Court Allows Light Cigarette Case

Wow.  The Supreme Court today allowed smokers to sue tobacco companies under state consumer protection statutes for deceptive promotion of "light" and "low tar" cigarettes.  In Altria Group v. Good, the Court rejected the defendants' argument that federal law on cigarette labeling preempts such suits.  Plaintiffs had sued under the Maine Unfair Trade Practices Act.  The District of Maine granted summary judgment for Altria, and the First Circuit reversed.  At the Supreme Court, Justice Stevens wrote today's majority opinion for the usual 5-4 split with Kennedy as the swing vote (Stevens, Ginsburg, Breyer, Souter, and Kennedy vs. Thomas, Roberts, Scalia, Alito).

Here's an excerpt from the AP story on the New York Times website:

The Supreme Court on Monday handed a surprising defeat to tobacco companies counting on it to put an end to lawsuits alleging deceptive marketing of ''light'' cigarettes.  In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote ''light'' and ''low tar'' brands.  The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power.  The tobacco companies argued that the lawsuits are barred by the federal cigarette labeling law, which forbids states from regulating any aspect of cigarette advertising that involves smoking and health.

Just when we thought federal preemption was going to change the course of mass tort litigation, it seems that one of the key pieces of tobacco litigation is alive and well.

HME

CAFA's Local Class Action Exception

BNA reports that a class action for medical monitoring and other state law claims concerning mold was remanded to state court under the exception set forth in  28 U.S.C. 1332(d)(3) which provides that if the primary defendant and between 1/3 and 2/3 of the plaintiff class are citizens of the forum state, the case may be remanded to state court. See Sorrentino v. ASN Roosevelt Center, E.D.N.Y., No. 08-550 (12/1/08). 

One of the key questions was what a "primary defendant" is under the statute.  Here's what BNA says about that issue:

While the court noted that the term “primary defendant” is not defined in CAFA, the court noted that a different district court in New York (in Brook v. United Health Group Inc., 2007 U.S. Dist. LEXIS 73640 (S.D.N.Y. 2007)) last year noted the term “has variably been defined as one: ‘(1) who has the greater liability exposure; (2) is most able to satisfy a potential judgment; (3) is sued directly, as opposed to vicariously, or for indemnification or contribution; (4) is the subject of a significant portion of the claims asserted by plaintiffs; or (5) is the only defendant named in one particular cause of action.'”

ADL

Possible Candidates to Head FDA

Article in the Wall Street Journal -- Critics Top Shortlist for FDA Head, by Alicia Mundy.  Here's an excerpt:

A doctor who once denounced Pfizer Inc. for holding a marketing event in a pool hall is leading President-elect Barack Obama's team formally assessing the troubled Food and Drug Administration, boosting his chances of becoming the next FDA commissioner.

Joshua Sharfstein, now head of the Baltimore Health Department, has tangled with the pharmaceutical industry on several occasions and would likely lead the agency to get tougher on drugs. Companies might benefit from his strong support of childhood vaccinations, however.

Several other candidates remain in the running for the top FDA post, and no decision appears imminent.

BGS

Moller on CAFA and Diversity Jurisdiction

Mark Moller, of DePaul University College of Law, has posted "A New Look at the Original Meaning of the Diversity Clause" on SSRN. Here's the abstract:

The 2005 Class Action Fairness Act, which allows federal courts to exercise diversity jurisdiction if members of a proposed class and the defendant reside in different states, raises a jurisdictional puzzle.

The puzzle was first identified by Brian Wolfman, Public Citizen's litigation director, in congressional testimony on CAFA. "When a proposed class action is filed," he argued, "the class does not yet exist and a constitutional 'controversy' exists only between the named plaintiffs and the defendant. Because there is no controversy between the absent class members... and the defendant... it is difficult to imagine how diversity jurisdiction can be constitutionally maintained [based on class members' citizenship] prior to certification of the class."

CAFA, in other words, forces us to ask whom an Article III "controversy" is "between" for purposes of establishing diversity jurisdiction.

In this article, I solve this puzzle. An Article III "controversy" subsists only "between" those subject to the court's "power to bind." Diversity jurisdiction is therefore limited to suits in which persons brought within that power are citizens of different states. Put another way, the constitutional reach of diversity jurisdiction and the due process limits on federal preclusion are, contrary to received wisdom, linked. I end by exploring the implications of this discovery for the constitutionality of CAFA.

ECB

Metrolink Chief's Conduct Before and After Crash

Article in the L.A. Times -- Crash thrusts Metrolink chief into the unwelcome limelight, by Jeff Gottlieb.  Here's an excerpt:

He is one of those well-paid technocrats who makes sure things run smoothly, someone few people have heard of but so many depend on. Then something happens, and that cloak of invisibility disappears.

For David R. Solow, that moment occurred Sept. 12, when a Metrolink train crashed into a freight train in Chatsworth. Twenty-five people died and 135 were injured in the worst rail accident in modern state history. Suddenly Solow, chief executive of the Southern California Regional Rail Authority, which operates Metrolink, was much closer to the spotlight than he cared to be.

No member of Metrolink's board will say publicly that Solow's $220,000-a-year job is in jeopardy, but his performance is being scrutinized as never before. The board has appointed an 11-member panel composed mainly of academics and industry experts to examine the railroad's safety and operating procedures. The board also approved a review of Metrolink's emergency preparedness and crisis communications plans.

BGS

Monestier on Canadian Class Actions

Tanya Monestier of Queen's University has posted her article, Personal Jurisdiction Over Non-Resident Plaintiffs in Multi-Jurisdictional Class Actions: Have We Gone Down the Wrong Road?, on SSRN.  Here's the abstract:

Canadian courts have recently been struggling with the question of personal jurisdiction over non-resident class members in multi-jurisdictional class actions. On what basis can an Ontario court, for instance, purport to bind a class member resident in British Columbia or Quebec? The loose consensus appears to be that a court in one province has personal jurisdiction over a class member in another province where there is a "real and substantial connection" between the plaintiff class and the adjudicating forum. However, a lack of consensus in the application of the real and substantial connection test has proved problematic for parties seeking finality in litigation. In particular, defendants cannot be assured that a settlement or judgment rendered in one province will in fact be enforceable in another, since the enforcing court may conclude that the adjudicating court did not have jurisdiction over non-resident class members under its view of the real and substantial connection test. There is thus the possibility that a defendant who has proceeded on the assumption that a settlement or judgment will be res judicata, will nonetheless be required to re-litigate the claim. This ultimately undermines the "order" and "fairness" which are said to lie at the heart of the Canadian conflict of laws.

This paper suggests that it is necessary to re-think whether a real and substantial connection is needed to ground jurisdiction over a non-resident plaintiff class. The real and substantial connection test was originally developed to govern the question of when courts can assume jurisdiction over an individual out-of-province defendant. The test cannot be readily transposed outside this context. Instead of focusing on the issue of whether there is a real and substantial connection between a non-resident plaintiff class and the adjudicating forum to support the assumption of jurisdiction, courts should re-orient their analysis towards ensuring that procedural safeguards are afforded to non-resident plaintiffs. If a non-resident class member is provided with sufficient notice, an opportunity to opt out and adequate representation, an adjudicating court should be viewed as jurisdictionally competent and its judgment accorded preclusive effect. Re-conceptualizing jurisdiction in this way eliminates the possibility that an enforcing court will be able to second-guess the adjudicating court's view on whether the real and substantial connection test has been satisfied and gives defendants a measure of control over the ultimate enforceability of a class judgment or settlement.

ECB

Resnik on CAFA

Judith Resnik recently posted her article, Lessons in Federalism from the 1960s Class Action Rule and the 2005 Class Action Fairness Act: 'The Political Safeguards' of Aggregate Translocal Actions, on SSRN. It recently appeared in the Pennsylvania Law Review.  Here's the abstract:

What does the Class Action Fairness Act of 2005 (CAFA) teach us about federalism? A first lesson is that, when confronted with state-based decision making of which they disapprove, national lawmakers federalize rights, as they have repeatedly done throughout United States history. In 2005, Congress turned to the federal courts because CAFA's proponents believed that state courts were too welcoming of collective adjudication. CAFA is part of a cohort of enactments and doctrinal developments of this era that preempt state decision making and push litigants toward noncollective and nonadjudicative remedies such as privately sponsored arbitration programs. CAFA's reliance on federal courts to deal with aggregate litigation parallels decisions made in the 1960s to revise the Federal Rules of Civil Procedure to facilitate the aggregation of parties and claims. The mechanism of federalization is the same, but the goals are not. In the 1960s, Rule 23 was redrafted to expand class action opportunities for claimants in the federal courts. By easing access, rulemakers wanted to maximize the enforcement of federal rights, which they perceived to be under-protected in state courts, especially when state actors were charged with discrimination. In 2005, the purpose was, once again, to offer an alternative to state courts, perceived by then to have over-protected rights for various kinds of plaintiffs. Thus, a second lesson to be drawn from the enactment of CAFA is how quickly substantive "national" goals can change aimed now at deploying federal courts to very different ends.

Turning the question around to ask what federalism teaches us about CAFA yields other insights. A review of the history of the interactions between state and federal governance results in a third lesson, that efforts to centralize authority in the federal government and to exclude the states are not likely to endure. In this federation, national rule pronouncement regularly relies on local implementation. Fourth, local decision making does not occur in isolation. Rather, state policies and laws are regularly shaped through the interaction of state officials crossing their own borders as well as those of the nation. The interactions across localities have increased as government officials work, translocally as well as transnationally, through national organizations of local officials such as the U.S. Conference of Mayors, the National Governors Association, and the National League of Cities. While CAFA may try to centralize decision making at the national level in an effort to assert the United States' sovereign interests, pressures from local and transnational levels function as "political safeguards" that limit concentrations of power through countervailing mechanisms that produce other policy judgments.

From the density and richness of such translocal initiatives comes a fifth lesson: CAFA's efforts to diminish the role of aggregate-rights claiming will not succeed. Joint endeavors by local officials and their national organizations are themselves a form of aggregation, prompted by the need for collective responses to problems that affect large numbers of persons. Like the invention of the class action rules in the 1960s, the development of translocal organizations is likewise innovative. These national networks of local actors function as "political safeguards" that check exclusive national authority, but they are not themselves intrinsically "safe." Rather, their power raises questions that are familiar in the class action and political science literatures about the adequacy of representation by spokespersons for the group, the commonality of interests among members, and the opportunities of members to participate so as to inform and to monitor their representatives. Further, some of these national networks raise new questions for social movement theory, which has been focused on networks of nongovernmental organizations (NGOs) rather than on these voluntary national, private entities gaining authority by virtue of their members holding local and state offices. Thus, I propose capturing their presence through the term "transnational organizations of government actors," or TOGAs, as I begin below to interrogate their contributions both to federalism and to aggregation.

ECB

Lorillard Tobacco Company on Liberty in America -- Including Liberty to Re-Start Litigation Against Itself?

Interesting paid-advertisement op-ed by Lorillard Tobacco Company in the Opinion section of today's Wall Street Journal.  Unfortunately, I can't find the ad online, so I'll have to type from my paper copy. 

The headline is "No Choice, No Freedom."  Lorillard begins by issuing what is a clarion call for any product-liability libertarian like me (and for disclosure, I represented R.J. Reynolds Tobacco Company in the 1990s).  From the ad:

Freedom is the right to choose -- perhaps the most powerful act in our democracy.  And nowhere else was that awesome responsibility better displayed than in the recent presidential election, the ultimate act of democratic choice.

Indeed, Americans know and understand the importance of choice.  Choice underlies the values of our nation.  It is the essence of individual character and ultimately leads to empowerment and engagement.  We are all better off with it -- and oppose those who want to limit it.

Choice, of course, demands responsibility.  Where that responsibility rests is often the crux of vigorous debate.  Government reform and regulation have appropriate places in our society.  But that government power to regulate must be balanced against misguided zeal that has the potential to restrict our freedom of choice.  Taken too far, such an effort may turn negative and could threaten the basic concept of liberty that Americans have protected for more than 230 years.

It is in that context that Americans should be ever vigilant about the government's encroachment on people's right to choose the legal products they want to enjoy.  Should Congress or an Executive Branch department or agency dictate whether we should drink diet soda or regular soda?  Drive only certain types of cars?  Eat in only certain types of restaurants?  We believe the answers to all of those questions is "no."  For the government to seek to eliminate that choice is troubling.  For it to succeed could be dangerous, and would stamp out the core of the American spirit.

Well said, indeed.  Then Lorillard turns to the specific issue -- Menthol cigarettes -- and here's where things get interesting:

With this in mind, we should consider a proposal, that some are advocating, to ban the use of menthol in cigarettes.  They claim that menthol cigarettes confer a higher risk for tobacco-related diseases, or that menthol cigarettes are more addictive than non-menthol cigarettes. 

And then the key sentence (italics added):

Yet, the existing body of scientific evidence does not support those conclusions.

Is Lorillard trying to re-start tobacco litigation against itself?  Smokers who in the future get cancer or other illnesses and who have smoked Menthol cigarettes may sue for fraud and allege that they relied on Lorillard's comment that Menthol is not more dangerous than regular cigarettes.  Such potential plaintiffs might hope to cull enough evidence of Menthol's additional danger to survive summary-judgment and put their claims before a jury that, despite voir dire attempts to exclude overt bias, might still be inclined against Lorillard from prior tobacco litigation and settlements.  Plaintiffs would still also have to prove reliance on the statements, but the failure of smokers in the last litigation to show individual reliance didn't prevent a litigation firestorm, and plaintiffs' counsel have experimented (although so far lost) with arguments that individual reliance is not needed where the background public knowledge is changed.

Lorillard certainly should press its view before Congress that Menthol is not more dangerous that non-Menthol.  But as a strategic matter, do they need to take out a mass-media ad to the public?  Such an ad likely does little to create additional support (most Journal readers probably supported them already), but it does open Lorillard up to possible litigation.

And then the ad continues in an appeal to balanced scientific inquiry (and due consideration that Menthol might not be more dangerous) that might be seen by some as vaguely reminiscent of the 1954 Frank Statement that figured prominently in the last litigation.  From today's ad:

Before Congress attempts to ban menthol cigarettes, which are smoked by nearly one-third of all smokers, they have a responsibility to know the facts and have all the evidence needed to make such an important decision.  That is why Lorillard advocates for a proper scientific review based on sound information and scientific evidence and data.

Finally, the ad returns to apply its earlier pro-choice sentiment to tobacco:

Young people should not smoke, and we support efforts to keep them from starting.  But, if adults, who can and should assess the risks of smoking, choose to smoke, then shouldn't they have the freedom to choose whether to smoke regular or menthol cigarettes?

We respect every individual's position on whether or not to smoke.  We trust that this respect is reciprocal and the right of Americans to choose the legal products they want is equally cherished.

Setting aside the debate on the dangers of Menthol cigarettes, my verdict is that Lorillard is right on principle, wrong on strategy.

BGS

Paul Howard & Marie Gryphon on FDA Preemption of Tort Lawsuits

Paul Howard and Marie Gryphon, both of the Manhattan Institute, wrote an editorial, Manhattan Moment: The right prescription for drug safety, in the Examiner.  (H/t to Point of Law.)

BGS

Jones Day's Robert Mittelstaedt and Chevron Case Involving Nigerian Plaintiffs Under Alien Tort Claims Act

AmLaw Daily profiles the Chevron jury verdict win obtained by Robert Mittelstaedt.  (H/t to Point of Law.)

BGS

FJC Interim Report on CAFA Effect

The Federal Judicial Center has released Impact of the Class Action Fairness Act on the Federal Courts: Preliminary Findings from Phase Two's Pre-CAFA Sample of Diversity Class Actions.  Download cafa1108.pdf (H/t to Civil Procedure Prof Blog.)

BGS

Exxon Makes First Payments to Valdez Spill Plaintiffs

Article in the L.A. Times -- Exxon Valdez victims receive first payments, by Kim Murphy.  (H/t to Torts Prof Blog.)  Here's an excerpt:

Reporting from Cordova, Alaska -- A little less than 20 years ago, Mike Webber was king of his own watery world. He was 28 years old, with three herring fishing boats. He leased another long-line boat for halibut, and gill-netted the fat salmon that made Prince William Sound one of the most legendary fisheries in the world.

Then came the 1989 Exxon Valdez oil spill. Overnight, it was all gone: Fish prices plummeted. People started selling their fishing permits to pay their mortgages, and then lost their houses anyway. Salmon rebounded, but the $12-million-a-year herring fishery all but disappeared.

On Friday, Webber and more than 200 other residents of this rain-soaked fishing town began getting the first round of punitive damage payments from ExxonMobil, closing the book on one of the nation's most epic battles over environmental destruction and corporate responsibility.

BGS

Effect of Expected or Pending FDA Preemption Legislation on Litigation

Beck/Herrmann at Drug and Device Law briefly reject the litigation relevance of legislation until it's passed.

BGS

Varying Congressional Views on New FDA Head

Article in the Wall Street Journal -- Lawmakers Divided Over Next FDA Head, Fixing Safety Issues, by Alicia Mundy.  Here's an excerpt:

A top House Democrat is asking President-elect Barack Obama to avoid naming any current officials of Food and Drug Administration to lead the agency, even temporarily, reflecting a divergence of views on Capitol Hill on how to fix the FDA's problems.

Congressional aides said Democratic officials have discussed naming Janet Woodcock, a longtime FDA official, as interim head after the expected departure of the current commissioner, Andrew von Eschenbach, a George W. Bush appointee. People close to the pharmaceutical industry also have been floating Dr. Woodcock's name as either interim or permanent FDA chief.

But Rep. Bart Stupak, a Michigan Democrat who holds a key post on the House committee that oversees the FDA, is seeking to forestall that choice. In a letter Wednesday to Mr. Obama, Rep. Stupak wrote, "I would encourage you not to appoint any current senior FDA employee as Commissioner or Interim Commissioner of the FDA."

BGS