Private plaintiffs love to scream “fraud on the FDA”! Agency fraud is their magic potion for dissolving any FDA action that they don’t like. Just assert that the FDA was bamboozled and invite some jury somewhere to ignore what the FDA actually did. Unfortunately for the other side, Buckman Co. v. Plaintiffs Legal Committee,
Pennsylvania Preemption Win Now Final
A year and a half ago we celebrated a rare prescription drug preemption win in the Philadelphia County Court of Common Pleas. Then the decision was appealed, and we held our breath. Preemption is never an easy sell in state courts, and Pennsylvania appellate courts are not exactly defendant friendly in prescription medical product liability…
Buckman Preemption Fatal to Claim for Violation of the FDCA in IVC Filter Case
Next week, under pressure from the Drug and Device Law Lifelong Best Friend, we are participating in a “murder mystery dinner theatre” in the “conservatory” of a local cemetery. (We didn’t know cemeteries had “conservatories.”) It is a Halloween-themed event, with costumes encouraged, and we may or may not wear our eerily-lifelike Standard Poodle mask/hood.…
Finding A Buckman Gem
At times, we have given a glimpse into the sausage making that goes into our production of posts on recent interesting cases and developments. Part of the process involves standing searches for “published” (including by the electronic services) decisions from trial courts and appellate courts. Sometimes, the trial court decisions are unpublished but interesting, and…
A Non-Drug/Device Preemption Win with a Caveat
Does Buckman Preemption Apply to Antitrust and RICO Claims?
We talk a lot on this blog about Buckman preemption. That isn’t just out of pride regarding Bexis’s role in the bone screw litigation that led up to the Buckman decision. The principle in Buckman is important. What happened in Buckman? Here is a nice summary: “In Buckman, the plaintiffs brought state…
Spoiler Alert: Florida Appellate Court Upholds PMA Preemption and Rejects Parallel Claim
Over the years, comedian Adam Carolla has played the “Germany or Florida” game on his various radio and tv programs and podcasts. The game is based on the observation that many of the most bizarre stories of human ineptitude come from Germany or Florida. Callers describe News of the Weird headlines, and Carolla and guests try to guess whether the events happened in Germany or Florida. You can listen to this segment from the old Loveline radio show.
Here are some examples of “Germany or Florida” clues:
- Man ate his dog.
- Carjacker forced to flee after realizing he could not drive a stick-shift.
- Trio shoots at imaginary foe, thereby attracting police to their homegrown meth lab.
- Naked swimmer hospitalized after angler hooks his penis.
- Man dies after blowing up condom machine.
- Sister assaults twin over sexy toy.
- Government creates blatant ex post facto law depriving tobacco companies of basic tort defenses.
Okay, you probably know about that last one. The answers to the others are below. By the way, Carolla is not alone in identifying The Sunshine State as also being The Sublimely Strange State. 30 Rock had a running gag about Florida craziness. See examples here. Also, Seth Meyers on the Late Show runs a “Fake or Florida” bit that can, at best, be charitably labeled as being derivative of Carolla’s gag. On last Sunday’s Last Week Tonight, John Oliver reported a story about a Florida man who planned to bomb Target stores up and down the east coast, with the idea of buying up Target stock on the cheap afterwards. After pointing out how the story involved home-made explosives, a big box store, and a terrible get-rich-quick scheme, Oliver noted that if the story also had a snake on meth, we would have full-on Florida Bingo.
Even before we earned our law license, we were aware that there is something … different … about Florida’s legal system. In our law school library, you could pull the 12 So. 2d volume off the shelf and it would automatically open up to the Lason v. State case, in which the Florida Supreme Court upheld the conviction of a 76 year old man for “abominable and detestable crimes against nature.” Some law school libraries have needed to insert photocopies of the Lason case after the original pages were worn out completely. Good times.
Last week there was a mini-eruption of Florida case law, and we will cover some of those opinions this week. It is not quite Shark Week for our blog, but it is close. Today’s case, Wolicki-Gables v. Doctors Same Day Surgery, Ltd., 2017 WL 603316 (Fla. DCA 2d Feb. 15, 2017), is unusual. The case is ostensibly about spoliation, but it is really about preemption and the dreaded parallel claim exception. Luckily, the case comes out the right way. But getting there was like doing a couple of laps on Mr. Toad’s Wild Ride. (You didn’t think you were getting out of this blogpost without at least one Disney World reference, did you?)
Mrs. Wolicki-Gables claimed a physical injury from a failed pain pump system. She and her husband initially sued the manufacturer of the pain pump, alleging causes of action for strict liability and negligence. The case was filed in state court, but was then removed to federal court. The pain pump system had received pre-market approval from the FDA. Because of that fact, and because of the Supreme Court’s decision in Riegel, the federal court held that the Wolicki-Gables’ product liability claims against the manufacturer were preempted by federal law. The Eleventh Circuit affirmed the summary judgment in favor of the manufacturer.…
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