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The issue of preemption in product liability cases involving medical device products continues to evolve. Recently, the U.S. Court of Appeals for the Tenth Circuit found that federal law preempts injury and negligence claims, brought under state law, even if the claims arise out of potential off-label promotion by the device manufacturer. The decision seemingly reaffirms a trend toward preemption although, with all cases, tort claims are fact- and pleading-specific.
Background
The case, Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir., 2015), involved a party who sued a medical device manufacturer under state law claims of injury and negligence. The party alleged that her surgeon used the company's bone growth stimulator product for off-label, i.e. , unapproved, uses during surgery, and the off-label use was due to the device company's off-label promotion.
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