Thin Pleadings Doom Another Not-So-Parallel Claim

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Today is the birthday of Adam West, the great television Batman, so we are pleased to see a court deliver a Bam! Pow! and Socko! to another attempt to escape Riegel preemption via a bogus parallel claim. The case is called DeSabio v. Howmedica Osteonics Corp., 2011 U.S. Dist. LEXIS 103288 (W.D.N.Y. September 13, 2011). It's not just another attempt to escape preemption; it's another attempt in a Trident artificial hip case.

We. Have. Seen. This. Before. Same Bat time, same Bat channel.

The plaintiff alleged that "the device squeaked and he 'suffered severe grinding and pain.'" 2011 U.S. Dist. LEXIS 103288 at *2. There were claims for negligence and res ipsa loquitur. There was also a claim for breach of express warranty. The plaintiff argued that the Trident components were negligently manufactured and carelessly designed. He also argued that because the component parts were solely in the control of the defendants, negligence could be presumed under the doctrine of res ipsa loquitur. But the court had little difficulty concluding that these claims were "based squarely" on a "purported breach of state tort duties of care." Id. at * 12. Moreover, the court had the benefit of five other cases involving the same Trident product, the same claims, and meeting the same fate of Riegel preemption. Id. at ** 12-13.

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