One of the benefits of blogging is that, after a while, dedicated readers start helping us out.  Usually, we’re in a position simply to pass what we receive along to the rest of our audience, but sometimes the heads-ups we receive are actually beneficial to our own litigation.  Either way, keep those opinions and orders coming.

That’s what happened last Wednesday.  We received two interesting cases from two different sources.  The first case was a nice preemption win, Wells v. Allergan, Inc., C.A. No. 6:12-3509-TMC, slip op. (D.S.C. Jan. 13, 2014), sent to us by prevailing counsel, Rich Dukes, of Turner Padget.  We, of course, turned around and shipped Wells off to Westlaw, and by the time you read this, it should be available at 2014 WL 117773.

Wells involves a device, injectable gel dermal fillers, that before reading the decision, we confess we’d never heard of.  We still don’t know much about them, but their critical attribute, from a preemption standpoint, is that they were pre-market approved by the FDA.  Ring that bell, and we defense lawyers start salivating.

With good reason.

In Wells, PMA preemption resulted in outright dismissal for failure to state a claim.  The court summed up the scope of FDA activity in a PMA pithily:  “During that process, the FDA evaluates everything about the device, from labeling to safety.”  Wells, slip op. at 3.  There’s a nice discussion of Buckman preemption, too, id. at 3-4, but nothing so quotable.

Anyway, the plaintiff in Wells fell back, as PMA plaintiffs are wont to do, on “parallel” claims.  No dice.  Plaintiff didn’t plead anything more than “barebones, conclusory allegations.”  Slip op. at 5.  The complaint did not “identify the federal requirement applicable to the device,” “explain how that violation . . . caused the plaintiff’s injury,” or “identify specific device defects.”  Id. at 4-5.  Thus, Wells earned a place on our TwIqbal cheat sheet as well.Continue Reading New Stuff From Our Readers