Products Liability Conflict of Laws

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Federal Preemption Narrowed For Aviation Suppliers In Sikkelee v. Precision Airmotive Corp.

On April 19, 2016, the Third Circuit Court of Appeals issued its opinion on the issue of federal preemption in Sikkelee v. Precision Airmotive Corp. The sixty-one page opinion effectively narrowed the scope of federal...more

Preemption: Oregon Has Not Gone Bananas

Can you get sued over a picture of a banana? It seems the answer might depend on where you live and probably not in Oregon. That is one takeaway from a good preemption case that came out of the District of Oregon last week,...more

C.D. Cal. Dismisses Infusion Pump Complaint

The plaintiff in Frere v. Medtronic, Inc., 2016 WL 1533524 (C.D. Cal. April 6, 2014), was an 80 year-old woman who had an infusion pump implanted to treat her chronic low-back pain. According to the plaintiff, the device...more

Third Circuit Limits Federal Aviation Act Preemption for Product Liability Claims

In a departure from a string of cases supporting field preemption of state-law aviation product liability claims under certain circumstances by the Federal Aviation Act (FAAct), the Third Circuit recently held that the FAAct...more

Innovator Drug/510k Medical Device Impossibility Preemption and the Meaning of “A Fortiori”

According to Black’s Law Dictionary, “a fortiori” is legal Latin meaning: - By even greater force of logic; even more so it follows. We’ve been arguing for some time – since PLIVA v. Mensing, 131 S. Ct. 2567...more

Federal Preemption of State and Local Laws Governing Children's Products

In January 2015, Albany County became the first of several municipalities in New York to enact a version of the “Toxic Free Toys Act” ("the Act") prohibiting any amount of six heavy metals and benzene in children’s products...more

FDA Biosimilars Guidance Not Conducive To Preemption

The FDA recently released draft guidance concerning the labeling of biosimilar products (analogous in the biologic context to generic drugs). It’s called, not surprisingly “Labeling for Biosimilar Products Guidance for...more

Comment K Case by Case – Falling Out of Favor?

When we examined Restatement (Second) of Torts §402A, comment k (1965), in our 2011 research post “Comment K, Some of the Way,” we remarked about how it said “a lot of things,” including: (1) that one can’t design away...more

Federal Preemption Claims: Clear Evidence and an Unclear Standard

Last week, a federal court in Utah granted Aventis Inc.’s motion for summary judgment based on federal preemption of failure-to-warn claims. Cerveny v. Aventis, Inc., 2016 U.S. Dist. LEXIS 34182 (D. Utah Mar. 16, 2016). The...more

Guest Post - Design Defect Preemption - It’s as Simple as One, Two, Three

Courts are starting to “get” the design defect preemption argument. That makes sense because the argument is simple. Any major changes in the design of a drug or a medical device require the prior approval or permission of...more

Cut the Fat . . . Just Not Yet: Court Rules that PHO Claims Are Preempted

Northern District of California Judge Maxine Chesney recently granted Nestlé’s motion to dismiss a challenge to partially hydrogenated oil (PHO) in Nestlé’s Coffee-mate® coffee-creamer products, finding plaintiff’s claims...more

Silence Would Have Been Golden: Unnecessary Illogical Preemption Decision in Motrin SJS/TENS Summary Judgment Victory

We sat through The Revenant again this weekend, at the plaintive (not plaintiff) request of a Drug and Device Law Friend who had yet to see it. Last time, we barely stayed awake. This time, we lost the battle. We have heard...more

GMO Labeling Debates Forge On After Close Senate Vote

The GMO war rages on after a close vote in the Senate last week addressing proposed voluntary, national standards for GMO labeling. A 48-49 split means the Senate failed to invoke cloture to bring the Biotechnology Labeling...more

Testing 101: Court Dismisses Whole Foods’ Yogurt MDL over Failure to Comply With FDA Testing Requirements

On February 16, 2016, U.S. District Judge Sam Sparks of the Western District of Texas dismissed a multidistrict litigation involving 11 putative class action lawsuits against various Whole Foods corporate entities and...more

Think Mink, part 2: Florida Federal Court Slams Door on Parallel Claims

Last November we blogged about "specialized" preemption issues in several cases, including Mink v. Smith & Nephew, Inc., 2015 WL 7356285 (S.D. Fla. Nov. 19, 1015). The plaintiff in Mink claimed physical injuries from a...more

Ninth Circuit Affirms Bar on California AG’s Efforts to Enforce Slack Fill Provisions Against Del Real in Meat and Poultry Case

On February 12, 2016, the Ninth Circuit affirmed the district court’s decision barring the California Attorney General’s efforts to enforce nonfunctional slack fill provisions against Del Real LLC, a producer of Mexican...more

Preemption And Causation Do Away With Contraception Lawsuit

With Spring Training well underway, we took notice of the solid base hit delivered last month by the Northern District of California in La Paz v. Bayer Healthcare LLC, No. C 15-03995, 2016 U.S. Dist. LEXIS 13058 (N.D. Cal....more

Preemption prevails in watercraft case under Federal Boat Safety Act

For vehicle manufacturers that find themselves in state court facing product liability claims over safety mechanisms, federal preemption is frequently examined as an affirmative defense. Watercraft manufacturers, in...more

Liability for Brand Drug Manufacturers All But Clear

Earlier this month, a federal district court in Illinois denied GlaxoSmithKline’s (GSK) renewed summary judgment motion based on federal preemption of failure-to-warn claims in an opinion setting tough standards for brand...more

Preemption Defense: Is Inaction by the FDA Enough?

A seeming contradiction between two recent federal district court rulings on preemption and the U.S. Food and Drug Administration’s oversight of pharmaceuticals creates some uncertainty about whether evidence submitted by the...more

Preemption Defense in the Ninth Circuit Is “Not Dead Yet”

Monty Python and the Holy Grail (1975) contained a scene where bodies of plague victims were brought out to the curb for collection via a cart whether or not they properly belonged there. One living fellow insists on not...more

Remembering Scalia, Remembering Riegel

For the second time in a week we are considering a former professor at our law school, though this occasion swims in sorrow. Before he became a Justice on the Supreme Court, before he became a Judge on the DC Circuit, Antonin...more

Toxic Tort & Product Liability Quarterly Vol. 9, No. 1, February 2016

Sixth Circuit Rules that Clean Air Act Does Not Preempt State Tort Claims - In a decision that may leave facilities open to private tort liability despite compliance with federal Clean Air Act (CAA) requirements, the...more

Seventh Circuit Knocks Out Claims Against Generic Manufacturer on Preemption Grounds

It is not often that we get the opportunity to discuss an opinion from a panel of judges including two former professors from our law school. Diane Wood is the Chief Judge of the 7th Circuit and taught us Civil Procedure at...more

2016 Emerging Issues in the Children's Products Industry

Many emerging issues impacting children's products and the juvenile products industry are anticipated this year. We may see new regulations promulgated by the Consumer Product Safety Commission (CPSC or Commission), the...more

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