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We know this is the Drug and Device Law Blog, but the similarities between food labeling preemption and medical device preemption are just too strong for us to pass up.  In both contexts, the FDCA has express preemption provisions.  The Medical Device Amendments to the FDCA, prohibit any state law or regulation “which is different

If a court tells you your only non-preempted claim is one based on a theory that your labeling does not comply with the Federal Food, Drug & Cosmetic Act (“FDCA”), it’s probably a good idea for your expert so opine.  Opting instead for expert testimony based on a consumer’s perspective is risky and likely problematic. 

Plaintiff in Gurule v. Boston Scientific Corp., 2023 Cal. Super. LEXIS 49321 (Cal. Super. Jul. 18, 2023), tried to pull off a little magic through misdirection, but couldn’t fool the court.  Plaintiff tried to distract the court from the complete lack of sufficient allegations to satisfy even notice pleading requirements by alleging an elaborate

St. Louis City courts have long been considered among the most pro-plaintiff in the country and for years litigation tourists flocked there using multi-plaintiff complaints with a single city resident to secure the venue.  Then the world changed in 2019.  The Missouri Supreme Court decided State ex rel. Johnson & Johnson v. Burlison, 567

The In re Smith & Nephew Birmingham Hip Resurfacing Hip Implant Products Liability Litigation MDL (“In re BHR MDL”) has disappointed us in the past with its early decisions on preemption, but had rebounded in its summary judgment rulings on individual bellwether cases. Unfortunately, when asked to apply that individual case analysis to a

As evidenced by our PMA Preemption Score Card, on which today’s case became the 651st entry, defendant manufacturers of FDA-approved Class III medical devices generally do pretty well with preemption motions.  But plaintiffs keep filing PMA medical device complaints, so we’ll keep posting about them. 

Which brings us to today’s case, Arnold v.