Wednesday, May 17, 2006

Going Up. I'm going out on a limb here and predicting that a new Second Circuit case will go up to the Supreme Court. Riegel v. Medtronic, Inc. raises, among other things, the question of whether section 360k(a) of the 1976 Medical Device Amendments to the Food, Drug, and Cosmetic Act preempts coomon law tort claims regarding medical devices that have entered the market pursuant to the Food and Drug Administration's rigorous premarket approval process. There is a split in the Circuits, with the Second Circuit joining the Third, Fifth, Seventh and Eigth Circuits holding that the federal statute does preempt common law tort claims. The Eleventh Circuit holds that it does not. With a 5-1 split, I might not be so confident of certiorari being granted, but there is also a split among the state courts that have dealt with that question with Texas and Pennsylvania coming out in favor of preemption and Illinois, New York, Washington and Oregon coming out against. Cases in California have come out on both sides of the question.

The decision can be found here.

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