Tuesday, December 21, 2010

New case combines preemption and "Twiqbal"

When discussing preemption I always tell my students it is a "powerful" defense and I remind them that it has been used to successfully dismiss claims in many different contexts about many different products. So I smiled when I read the first line of a recent post at the Abnormal Use website: "As a defense lawyer, I dream about preemption..." The rest of the post, however, is what is important. It relates to a new case that illustrates what is now becoming a common "one-two punch" by defendants in product liability litigation: preemption and pleading requirements. In this particular case, the court dismissed a claim by applying a combination of preemption and what some people have been calling "Twiqballing" - which is a reference to the consequences of two cases called Twombly and Iqbal on the requirement to plead cases fully. For a list of cases applying this doctrine go here. The case is called Gelber v. Stryker (S.D.N.Y. Sept. 14, 2010) and it involved a claim that a hip replacement device was defective. The court dismissed the claim on preemption grounds based on the rigorous review the FDA had used in approving the device. The plaintiffs tried to reply by arguing that the defendants violated FDA manufacturing requirements but the court held that the plaintiffs had not sufficiently plead claims "grounded in violations of federal law and/or requirements." Thus, the court dismissed the claims, although it will allow the plaintiffs to amend to attempt to meet the pleading requirements. Thanks to Abnormal Use for the information.

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