The definitive source for intelligent commentary on the law that matters for drug and device product liability cases
“Parallel” requirements.
That’s where they’re going to come after us. We know it. They know it.
Plaintiffs have no choice. Under Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008), supposedly “parallel requirements” – alleged tort duties congruent with FDA requirements – are essentially the only thing the Supreme Court did not find preempted…
Just two weeks before the U.S. Supreme Court decided Riegel v. Medtronic, the Supreme Court of Arkansas had decided Despain v. Bradburn, No. 07-714, 2008 WL 324356 (S. Ct. Ark. Feb. 7, 2008). We dutifully reported that case in our Device Preemption Scorecard, but otherwise didn’t say much about it, because we’re…
The Supreme Court briefing is now complete in Riegel v. Medtronic. For preemption wonks like us, that’s sort of like being a kid in a candy store – so we’ve taken a good look at what have to be the best and most state of the art defense preemption arguments around for those of…
It certainly didn’t take long.
Back in late July we posted about the extraordinarily restrictive view of Vaccine Act (and indeed of all) preemption taken in Ferrari v. American Home Products Corp., 2007 WL1933129 (Ga. App. July 5, 2007).
In our view Ferrari had taken the presumption against preemption to an “unprecedented” extreme –…
How many times have we heard that, in deciding preemption issues the “purpose” or “intent” of congress is the “ultimate touchstone” that the courts must respect? Lots. We can start with Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), the express preemption case involving medical devices and the Medical Device Amendments to the FDCA:…