Bexis is now involved in the Colacicco/McNellis appeal, so he can no longer post on that subject. He thus was not involved in drafting this short post; it’s Herrmann’s work alone.
And Herrmann doesn’t really have much to say, either. (No surprises there.)
If you’re trying to read the tea leaves for the upcoming Colacicco/McNellis appellate argument in the Third Circuit, consider these tidbits about the judges on the panel:
1. Judge Ambro cast the second vote in favor of medical device (PMA) preemption in Horn v. Thoratec, 376 F. 3d 163 (3d Cir. 2004), a two to one decision.
2. Judge Sloviter was part of the panel that unanimously ruled in favor of preemption when the Third Circuit decided Cipollone v. Liggett Group, Inc., 785 F.2d 1108 (3d Cir. 1986) (before cert. was granted), lo those many years ago.
3. We don’t have anything to say about the third judge on the Colacicco panel, Judge Restani. We’re still trying to figure out what type of appeal goes to the Court of International Trade. (It’s a good thing we’ve never had an argument there; we wouldn’t have been able to find the courthouse.)
Beyond those few morsels, you’re on your own to speculate about the likely result in Colacicco.