There’s a certain romance to the idea that if one courthouse door closes, another—perhaps with better lighting and more favorable precedent—must surely be open somewhere else. But as one group of particularly determined preemption refugees recently learned, civil procedure is not a game of judicial Whac-A-Mole.
The story begins in Utah, where 50 plaintiffs brought a products liability lawsuit against the manufacturer of Filshie clips—a medical device used in tubal ligation. The Utah court dismissed all claims as preempted and that decision became the 669th entry on our PMA preemption scorecard. Not a big surprise. A quick search of the blog for “filshie” will reveal a plethora of Filshie clip preemption dismissals. In dismissing the case, the Utah court concluded that it lacked subject matter jurisdiction, that the plaintiffs’ claims were dismissed with prejudice, and that the “[o]rder fully and finally resolves this matter.” Allen v. Coopersurgical, Inc., 2025 WL 3641538, *5 (Ct. Sup. Dec. 10, 2025). Game over, right? Res judicata?
Well, the plaintiffs latched on to the Utah court’s use of the phrase lack of subject matter jurisdiction. Rather than filing an appeal, 49 of the Utah-plaintiffs, hoping that a fresh venue plus a semantic loophole would resurrect the case, joined another multi-plaintiff complaint against the same defendants filed in state court in Connecticut. The most likely reason for the cross-country trek is that Connecticut is one of the few states that allows failure-to-report claims—a claim the Utah court specifically rejected.
Yes, the Utah court said “lack of subject matter jurisdiction.” But labels don’t override reality. What matters is what the court actually decided. And what it actually decided was that federal law preempted the plaintiffs’ claims. That’s a determination on the merits. The re-litigation of which is precisely what the doctrine of res judicata is designed to prevent. The Connecticut court agreed.
Analyzing the elements of res judicata, the court found it was undisputed that the Utah state court was a court of competent jurisdiction and that the parties to the dispute were the same. Id. at *8, *11. Nor was there much dispute that the claims arose from the same transaction. Both cases were premised on allegations that the medical device was dangerous and defective, that defendants failed to warn, and that plaintiffs suffered injury. Id. at *14.
Plaintiffs’ primary argument was that the Utah decision was not a ruling on the merits, relying on Connecticut precedent holding that “jurisdictional dismissals are not final judgments on the merits,” and therefore are exempt from the doctrine of res judicata. But, even if preemption is a jurisdictional question, res judicata still bars issues that “have been fully and fairly litigated and finally decided”—as the issue of federal preemption was by the Utah court. Id.at *9.
More importantly, however, the Connecticut court held that
whatever label placed on it by the Utah court—a dismissal based on federal MDA preemption goes to the merits of the action and is not jurisdictional in nature. This court declines to elevate form over substance in the context of its res judicata analysis under Connecticut law, and ascribe talismanic significance to the Utah court’s “subject matter jurisdiction” description of its dismissal.
Id. (emphasis in original).
The court had ample justification for their conclusion. First, Connecticut courts have expressly rejected characterizing federal preemption as jurisdictional in nature. See id. at *9-10. Second, the Utah court dismissed the case with prejudice, making it a final adjudication on the merits. Id. at *10. Third, the cases relied on by plaintiffs refusing to apply res judicata to jurisdictional matters were “clearly distinguishable.” This is not a case where the claim was dismissed for lack of standing or ripeness. See id. at *11 (distinguishing cases).
Plaintiffs’ final argument was that the claims in the two lawsuits are different. The Utah complaint did not include a cause of action under the Connecticut Unfair Trade Practices Act (“CUTPA”). For res judicata to apply, “there must have been an adequate opportunity in the prior action to litigate the omitted claim fully.” Id. The key being opportunity. Plaintiffs failed to show that they lacked an opportunity to assert a CUPTA claim in the Utah action. They chose not to, but they certainly could have. States are asked to apply the laws of other states all the time. Because the Utah decision satisfies all the other elements for res judicata to apply, the CUPTA claims were extinguished “because they could have been asserted in [the prior action].” Id. at *13.
Res judicata means that once a court of competent authority renders a final judgment on the merits, the parties don’t get a do-over just because they’ve discovered a new courthouse or a more optimistic outlook. Connecticut was not a legal reboot. If plaintiffs believed the Utah court got preemption wrong, the remedy was an appeal, not a relocation. Preemption is still preemption, “with prejudice” still means with prejudice, and res judicata has an excellent memory.