Some of us on this blog have rooting interests that lie far from where The Schuylkill and The Delaware meet.  They’re up past the New Jersey Turnpike, all the way to New York City.  For us, ever since the echoes of the Giants’ raucous ride through the Canyon of Heroes faded, it’s been all about the Knicks and Linsanity!  And after watching the Linsane 3-pointer to win the game last night, we must admit that we expected it to be difficult to sit down calmly, think, and then write a post about medical device decisions.  But that’s what we’re here for, and it gave us another thing to occupy our time while we wait for Linsanity to tip off once again tonight.

Fortunately, the case we’d like to discuss, Tierney v. AGA Medical Corp., No. 4:11CV3098 (D. Neb), has two recent opinions that contain so many things that we like that discussing it isn’t difficult at all.  It has preemption.  It has Twiqbal-like pleadings standards.  It has enforcement of the rules.  And it displays the type of judicial distaste for the use of discovery as a fishing expedition that heartens us. 

The background of the case is rather ordinary.  The plaintiff filed negligence and strict liability claims against the manufacturer of a heart-related medical device, claiming that the device contained nickel elements that caused an allergic reaction.  Slip Op. at 1-2.  But the device was approved under the FDA‘s pre-market approval process.  That means that the claims are preempted.  In fact, the plaintiff himself responded to the manufacturer’s motion to dismiss by outright conceding that his claims are preempted.  Slip Op. at 5.

Please see full article below for more information.