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We do not often see state court opinions strongly endorsing federal preemption, or even weakly endorsing federal preemption.  That is why we took notice last week when the California Supreme Court ruled unanimously that the Medicare Act expressly preempted state common-law and statutory claims against a health maintenance organization and a healthcare plan administrator.  Most

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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.

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Bischoff v. Albertsons Co., 2023 U.S. Dist. LEXIS109367 (SDNY June 26, 2023), is another favorable preemption ruling in the current spate of class action strike suits attacking “rapid release” over-the-counter (OTC) products, here acetaminophen, that were marketed in conformity with FDA regulations.  

The plaintiff claimed that she purchased a generic form of “rapid release”

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It’s unusual when the same defendant wins two unrelated cases involving the same product in the same week – and on the same issue.  But it does happen, and recently, in both Benn v. Medtronic, Inc., 2023 WL 3966000 (D.N.J. June 13, 2023), and Warmoth v. Medtronic, Inc., 2023 WL 3938464 (W.D. Okla. June 9, 2023), express medical device preemption carried the day, in decisions issued only four days apart.

That’s worth a blogpost – and two cheers.  Hip hip!Continue Reading A Preemption Two-Fer

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Each of these cases is significant enough to merit its own post, but since they came down within a week of each other, we’re discussing both of them here.  They are:  Gahl v. Aurora Health Care, Inc. ___ N.W.2d ___, 2023 Wisc. LEXIS 137 (Wis. May 2, 2023), and M.T. v. Walmart Stores, Inc., ___ P.3d ___, 2023 WL 3135662 (Kan. App. April 28, 2023).Continue Reading Two New Appellate COVID-Related Developments