Franco v. Chobani, LLC, 2025 WL 1530996 (N.D. Ill. May 29, 2025) is a relatively rare preemption win in a court controlled by occasionally iffy Seventh Circuit law. It is also a food case, not a drug or device case. There is a lot of food-specific discussion (about different molecular structures of “sugar”). That
Today we address two more cooked-up—literally—Valisure cases, Bodunde v. Walgreens Boots Alliance, Inc., No. 1:24-CV-00985-JLT-SAB, 2025 WL 1411306 (E.D. Cal. May 15, 2025), and Navarro v. Walgreens Boots Alliance, Inc., No. 1:24-CV-00290-JLT-SAB, 2025 WL 1411406 (E.D. Cal. May 15, 2025).
These two cases involve legally identical magistrate recommendations that Defendant’s motions to dismiss
We really cannot say whether chicken by any other name would smell as sweet or even as chickeny. While we do not compare ourselves to the Bard, we can say that cultivated chicken meat cannot be sold in Florida to allow any such olfactory comparison there. The manufacturer of just such a product challenged the
Not too long ago we saw a story in the legal press about a newly filed case in Minnesota where the plaintiff claimed that the FDA was going easy on the defendant because it approved “hundreds of premarket supplements” rather than requiring “a new PMA application.” Supposedly “[b]y utilizing the [premarket approval] supplement process instead of filing a new PMA application, [the defendant] avoided the rigorous scientific review, public comment and clinical trial requirements.”
That’s barnyard excrement. This plaintiff isn’t just wrong s/he is loud wrong – which, for plaintiffs, is unfortunately rather common.Continue Reading Supplemental Authority
Medical device preemption should be straightforward. The statute could not be clearer. Federal regulation supplants state laws that would impose requirements that are different from or in addition to the federal requirements. But the law has evolved into a bit of a mess, with misreadings of certain approval/clearance pathways and inventions of exceptions, such as
Covid-19 is not over. Per doctor advice (namely, that geezers whose primary form of exercise consists of removing Meursault corks should do their best to avoid Covid) we recently received yet another Covid-19 jab. We’re not up to double digits yet, but cannot be far from it. For those of you who would gleefully castigate
Back in 2020, we encountered Gustafson v. Springfield, Inc., 2020 Pa. Super. Lexis 843 (Pa. Super. Sept. 20, 2020), a decision so bizarre that it reminded us of a Monty Python movie. That decision “employ[ed] a rationale, at once both paleolithically conservative and pro-plaintiffly radical, that would render any federal “tort reform” statute unconstitutional.” Gustafson involved a federal statute that preempted most tort litigation involving firearms, the Protection of Lawful Commerce in Arms Act of 2005, 15 U.S.C. §§7901, et seq., (“PLCAA”), and declared that the PLCAA violated the Tenth Amendment.
Since it did not involve prescription medical product liability litigation, the Blog did not follow Gustafson all that closely – our last mention of it was in 2021, noting that en banc reargument had been granted and the singular panel opinion had been withdrawn. However, the decision that resulted from the reargument was a mess. Gustafson v. Springfield, Inc., 282 A.3d 739 (Pa. Super. 2022) (en banc), produced no majority and five different opinions from the nine judges. Moreover, the overall result, which was to reverse the trial court’s dismissal of the suit, was contrary to the majority votes of the individual judges. How could that be? Here’s a brief description from a Pennsylvania appellate procedure article Bexis wrote about Gustafson:
The outcome in Gustafson thus differed dramatically from the votes of the nine en banc judges on the merits of the two issues. The outcome was 5-4 in favor of reversal, as four judges would reverse on constitutional grounds, and one judge would reverse solely on statutory grounds. On both of the two issues, however, the position advocated by the defendants was in the majority. Seven justices agreed that, factually, the Arms Act was applicable to the Gustafson plaintiffs’ claims. By a slimmer margin of 5-4, a majority of the Gustafson judges agreed that the Arms Act was constitutional.
J. Beck, “What Happens When Precedent Splinters? A Look at Gustafson,” Law.com (Nov. 17, 2022).
This bizarre result had one beneficial effect, it virtually forced the Pennsylvania Supreme Court to take the inevitable appeal in order to clean up the mess. Which it did. See Gustafson v. Springfield, Inc., 296 A.3d 560 (Pa. 2023) (granting review).
And last month, the Pennsylvania Supreme Court did indeed clean up the mess. See Gustafson v. Springfield, Inc., 2025 Pa. Lexis 442 (Pa. March 31, 2025).Continue Reading At Least Pennsylvania Is Not That Completely Different
The recent case of Happel v. Guilford County Bd. of Educ., 2025 N.C. LEXIS 191, 2025 WL 879618 (N.C. March 21, 2005), will probably provoke a political debate, but that is not why your friendly neighborhood DDL blog has it up for discussion today. In Happel, the North Carolina Supreme Court created an
Bergdoll v. Coopersurgical, Inc., 2025 U.S. Dist. LEXIS 38300 (W.D. Mo. March 4, 2025), is a good Class III medical device preemption decision. The device was a Filshie clip, which is used to perform tubal ligations. The claim in Bergdoll is the typical one that the clip migrated and caused adverse symptoms. Bergdoll is
Rieger v. Medtronic Minimed, Inc., 2025 Cal. Super. Lexis 14 (Cal. Super. L.A. Cnty. Jan. 28, 2025), is an excellent PMA preemption decision from, of all places, Los Angeles County Superior Court, in California – home of the notorious “the Bank” courthouse. We have no idea whether Rieger was adjudicated in LA’s Central Civil West Courthouse, but that is the first thing we defense hacks think of when we see a “Cal. Super. L.A. Cnty.” citation.
But a few more like Rieger, and maybe we won’t any longer.Continue Reading Taking Preemption to the Bank