Today we bring you another generally favorable Essure preemption decision. Plaintiff brought three causes of action against the manufacturer and the court dismissed two of them. So, in the immortal words of Jim Steinman as belted out by Marvin Lee Aday, we shouldn’t be sad because two out of three ain’t bad. And one of the two is actually quite good. So, we certainly aren’t crying icicles like Meat Loaf. More like when we went looking for a ruby in a mountain of rocks, we came up with a sapphire instead.
We’ve written about Essure cases over the years, like here and here. And in many ways Ortiz v. Bayer Corp., 2022 U.S. Dist. LEXIS 226472 (E.D.N.Y. Dec. 13, 2022), is not much different. Plaintiff alleged injuries from a permanent contraceptive device and brought claims for failure to train, manufacturing defect, and breach of express warranty. The types of claims that sometimes skirt around the twin guards of PMA preemption—Riegel express preemption and Buckman implied preemption. The court dismissed the training and warranty claims but ruled plaintiff did enough at the pleadings stage to keep her manufacturing defect claim.
The failure to train warning took a double hit as both expressly and impliedly preempted. First, to the extent plaintiff demanded training beyond what the FDA requires, they were asking the state to impose an obligation on defendants that was “different from or in addition to” federal requirements and therefore was expressly preempted. Id. at *10. That left plaintiff’s argument that they were pursuing a “parallel” claim that defendants breached a purported duty to train under New York law. But the court ruled that a general negligent undertaking claim under state law falls short of any “clearly articulated state law duty or cause of action to parallel the federal training requirements.” Id. at *11. That’s a useful aspect of the preemption argument that negligent undertaking claims are too broad to be genuinely equivalent to a specific FDA physician training obligation.