Ninth Circuit re Stengel: Back to the (En) Banc

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As we noted here, the Ninth Circuit Court of Appeals’ decision in Stengel v. Medtronic Inc. (676 F.3d 1159 (9th Cir. 2012)) left plaintiffs who sue the manufacturers of pre-market approved devices precious little in the way of potential state-law claims that are not expressly preempted by Riegel or impliedly preempted by Buckman. In fact, the majority of the three-judge panel recognized the exceedingly narrow window it had created by volunteering state-law manufacturing defect claims in response to plaintiffs’ anticipated complaint: “Are there any non-preempted state-law claims left?” It appears that the majority of non-recused active judges in the Ninth Circuit may find the Stengel opinion’s answer insufficient: On July 25th, it voted to rehear the case en banc, prohibiting citation to the original opinion in the meantime, per usual. --- F.3d ---, 2012 WL 3039710 (9th Cir. Jul. 25, 2012). The hearing will take place during the week of September 17th.