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Preemption Beyond Drugs and Medical Devices

By Daniel J. Herling

Although the issue of Federal Preemption has grabbed the headlines in medical device and pharmaceutical cases, those analyzing preemption's impact on plaintiff's failure-to-warn claims on other types of products that are subject to federal regulation are significant for their varied results.

For example, the Third and Fourth Circuits have addressed similar, if not identical, claims reaching very different conclusions. Pinney v. Nokia, Inc., 402 F.3d 430 (4th Cir. 2005) and Farina v. Nokia, et al., ____ F.3d _______ (3rd Cir. Sept. 2, 2008) both involved putative class actions brought against various manufacturers, suppliers, lenders, and lessors of wireless hand-held telephones (cell phones), those that provide wireless services for such devices, and two trade associations that represented that such devices were safe to use. The complicated and lengthy procedural history of the cases (the complaint that led to the two separate appellate opinions was first filed on April 19, 2001) raised several issues for both courts to consider, including personal jurisdiction, law of the case, and federal preemption.

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