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


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.