Friday, December 21, 2012

Buried Treasure


Take a look at what we just found.  We were reading another case and came across (in a long string citation) an intriguing reference to Purchase v. Advanced Bionics, LLC, No. 2:08-cv-02442-JPM-tmp, slip op. (W.D. Tenn. Aug. 4, 2011) (McCalla, C.J.), in the context of PMA preemption.  We'd never heard of that opinion before.  Well, we have a PACER account and know how to use it, so we obtained the actual decision.

If you make Riegel-based PMA preemption arguments, you’ll probably be interested in these holdings in Purchase:

  • A defendant’s alleged failure to obtain supplemental FDA approval of a change to a device involves an “administrative,” not a “safety” requirement.  Such allegations are thus preempted “disguised fraud on the FDA” and as improper private FDCA causes of action.
  •  “Derivative” misbranding/adulteration claims based on the same allegations are likewise preempted.
  • A defendant’s alleged failure to notify the FDA of a major change to a device in its annual report likewise involves an “administrative,” not a “safety” requirement, and is equally preempted.
  • Various FDA GMP regulations (21 C.F.R. §§ 820.20, 820.80, 820.100, and 820.198) are “too generic to provide a requirement that could support a parallel claim.”

Happy holidays to all.

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