New Hampshire has always marched to its own flinty tune. It was the first colony to establish a government independent of British authority. It holds the first presidential primary every four years, insisting that candidates visit waffle shops and bloviate to the amused Yankee locals. You’ve probably seen New Hampshire license plates with the “Live Free or Die” motto. That motto supplied the title for episodes of both The Sopranos and Breaking Bad. What other state can make that boast? And what other state with such a small population can list among its offspring such eloquent luminaries as “Go West Young Man” editor Horace Greeley, “Liberty and Union, now and forever, one and inseparable” Senator Daniel Webster, “And miles to go before I sleep” poet Robert Frost, and we-can’t-think-of-a-quote President Franklin Pierce?
New Hampshire has played a significant role in American legal history. Daniel Webster won a case against the Devil. One of the early major U.S. Supreme Court cases involved Dartmouth College. We cannot remember what the case was about, though we think it had something to do with Delta House being put on double secret probation. The Bartlett v Mutual product liability case gave rise to some awful rulings in the New Hampshire federal court before the Supreme Court set things right in what might be our favorite case of the last five years.
In today’s case, Murray v. Hogan, #226-2013-CV-00600 (New Hampshire App. Ct. Feb. 2, 2015), a New Hampshire court addresses Riegel preemption, as well as the dreaded parallel claim exception. As far as we can tell, it is the first such decision from the Granite State. (We gratefully tip our cyber cap to David Ferrara at Nutter McClennen for sending the case our way.) The plaintiffs in Murray brought negligence and products liability claims claiming injuries from a knee replacement gone wrong. The plaintiffs sued several defendants, including the manufacturer of the artificial knee, as well as the sale rep who was in the operating room and assisted in preparing the artificial knee for insertion. The artificial knee was a class III medical device, so it comes as no shock that the company moved for summary judgment against all of the plaintiffs’ claims as being preempted by federal law. Even less of a surprise, the plaintiffs disagreed, arguing that federal preemption does not apply because: (1) the artificial knee did not meet federal regulations, (2) the plaintiffs would like to have some discovery, please, and (3) the company is vicariously liable for the conduct of the sales rep.