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We’ve heard through the grapevine (well because one of us has tangential involvement) that the Riegel v. Medtronic case, that the Supreme Court took to sort out the question of preemption and pre-market approved medical devices, may not get decided after all.

There’s been a flurry of recent motion practice due to the death of the plaintiff – two and a half years ago – and the failure of plaintiff’s counsel to file a suggestion of death or to raise and substitute an estate (for you non-lawyers, that’s what we have to do in that situation because dead people can’t sue) at any time during the intervening period.

The Supreme Court, not one to mess around with this kind of thing, requires substitutions within six months of death – or so we’re informed.

We’re not making this up. One of the biggest preemption cases (for the industries we defend anyway) could go down the tubes because the plaintiff’s lawyer screwed up some relatively routine ministerial function. We hope they paid their malpractice premiums (well, maybe we don’t).

Leaving an “i” undotted in this significant a case is so bizarre to us that the conspiracy theorist amongst us is awakened. Might Public Citizen (which is of record for plaintiffs) have decided that they didn’t want this case heard by the Court right now? Specifically, might they not want to get a brief on the merits from the Solicitor General along the same lines as the brief that the government submitted on the petition for certiorari?

Maybe yes, maybe no.

If Riegel gets dismissed, then next in line (we thank Rick Samp over at WLF, who commented to the original version of this post, for this information) would be Baker v. St. Jude Medical, 178 S.W.3d 127 (Tex. App. 2005), rev. denied (Tex. Dec. 15 2006), pet. for cert. filed No. 06-1262. According to Rick, the justices are scheduled to review the Baker petition for certiorari at their September 24 conference – so stay tuned. We’d have to say, the profile of the Baker case may go up a bit. That’s probably the only case with a chance for Supreme Court review before January 20, 2009, when a different administration will be inaugurated.

Beyond that, given the glacial speed with which the appellate wheels turn in litigation, there’s virtually no chance for another case presenting the same issue of medical device preemption to get to the Supreme Court on the merits until after the change in administrations. We’re aware of a number of cases where federal district courts recently granted preemption motions (Mattingly, Thornburg, Rattay), but only Thornburg appears to be a final judgment. The case that seems to be farthest along is Troutman v. Curtis, which the last time we looked (which wasn’t recently) was pending in the Kansas Supreme Court. Even if that court handed down a decision next week, the timing would be really tough.

Apparently the suggestion of death was out of time before the appeal even got to the Supreme Court. The conspiracy theorists amongst us speculate (that’s all it is) that maybe plaintiff’s counsel were hoping for a free shot – if they liked the way the briefing was unfolding, keep it a secret, but if they didn’t, torpedo the case by letting the (Schroedinger’s) cat out of the proverbial bag.

Maybe we’re just paranoid, but like we’ve said before, strange things seem to happen in tort preemption cases.

In any event, the likelihood of a definitive resolution of the preemption issue as it relates to pre-market approved medical devices has suddenly dropped precipitously.