Thanks and a tip of the cyberhat to Tom Stayton for sharing with us a recent medical device preemption win in McCutcheon v. Zimmer Holdings, No. 06 C 6256 (N.D. Ill. Aug. 6, 2008) copy of slip opinion here. The case involves, as expected, a Class III PMA approved device, a knee replacement
Okay, we’ll take the bait.
Twice yesterday, Jane Genova over at Law and More asked us whether Congress will pass a bill overruling the Supreme Court’s recent decision finding preemption in the context of certain medical devices. See Riegel v. Medtronic, No. 06-719, slip op. (U.S. 2008).
Here’s our response:
First, we’re not lobbyists.
Plead preemption as a defense, where appropriate, in drug and device cases. And develop the necessary record to present that defense.
Bad things happen to people who don’t.
In the recent case of Sherman v. Winco Fireworks Inc., 532 F.3d 709 (8th Cir. July 3, 2008), Winco, the defendant fireworks distributor, did not plead Federal
Last year, in Meyer v. Fluor Corp., 220 S.W.2d 712 (Mo. 2007), the Missouri Supreme Court broke what had otherwise been a clean sweep and recognized medical monitoring claims in certain circumstances. Meyer was a true toxic tort case, involving children allegedly exposed to lead by smelter operators.
Earlier today, Judge Dorr of the
We were pleased to see that Judge Breyer has entered a so-called “Lone Pine” order in the Celebrex multidistrict litigation. Here’s a link to the order.
Lone Pine was a New Jersey state court case in which the judge ordered plaintiffs to offer proof connecting the defendant’s product to the plaintiff’s alleged injury.
Late last week, we received an e-mail from Reed Smith telling us that the firm has launched a “Life Sciences Legal Update blog.”
It looks as though this new entry into the blogosphere will cover all things related to life sciences, including litigation, transactional, and regulatory developments.
Welcome to the blogosphere, Reed Smith!
But,
On the one hand, there’s the plain language of the statute.
On the other hand, some courts think that a literal reading of the statute would yield “a bizarre result” that “cannot possibly have been the intent of the legislature.”
So some courts follow the language, and others ignore it. The law becomes a muddle.
A tip of the cyberhat to Kennedy Simpson for passing along to us a new medical device preemption decision in Kentucky state court, Mattingly v. Hubbard. Since it involves a PMA device (something called a “Targis System”), the basic preemption holding is, of course, dictated by Riegel. Plaintiff couldn’t prove that the device