Borskey v. Medtronics Inc ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________________
No. 95-30303
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ELAINE BORSKEY, ET AL.; JAMES A. BORSKEY; LEON PIERSON;
TERESA PIERSON; PEGGY MORAN; JAMES MORAN, and all
similarly situated,
Plaintiffs-Appellants,
VERSUS
MEDTRONICS, INCORPORATED,
Defendant-Appellee
VERSUS
SANOFI WINTHROP PHARMACEUTICALS,
Defendant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
(94-CV-2302)
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December 9, 1996
Before DAVIS and DUHÉ, Circuit Judges and DOWD1, District Judge.
PER CURIAM:2
1
District Judge of the Northern District of Ohio, sitting by
designation.
2
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
1
Appellants challenge the district court's judgment rejecting
their claim for damages for personal injuries predicated on
Louisiana products liability law and RICO. The district court
rejected the RICO action on grounds that RICO has no applicability
to an action for damages from personal injuries. We agree and for
reasons stated by the district court in its March 13, 1995 order
affirm the dismissal of the RICO claim.
The district court dismissed appellants' products liability
action as preempted under the Medical Device Amendments of 1976 to
the Federal Food, Drug and Cosmetic Act. 21 U.S.C. § 301 et seq.
Some time later, the Supreme Court issued a decision in Medtronics,
Inc. v. Lohr, 513 U.S. ___, 116 S. Ct. 2240, 135 L. Ed. 2d 700
(1996), which addresses the scope of the MDA's preemption
provision, 21 U.S.C. § 360k(a).
Section 360k(a) of the MDA prohibits states from
"establish[ing] or continu[ing] in effect with respect to a device
intended for human use any requirement" that is "different from, or
in addition to, any requirement applicable under this chapter to
the device" and that "relates to the safety or effectiveness of the
device or to any other matter included in a requirement applicable
to the device." 21 U.S.C. § 360k(a). In Lohr, a plurality found
that "[n]othing in § 360k denies [a state] the right to provide a
traditional damages remedy for violations of common-law duties when
under the limited circumstances set forth in Local Rule 47.5.4.
2
those duties parallel federal requirements." Lohr, 116 S. Ct. at
2255. The dissent agreed, stating that state law "claims are not
pre-empted by § 360k to the extent that they seek damages for [a
defendant's] alleged violation of federal requirements." Id. at
2264.
To the extent that the appellants' state law actions set forth
violations of federal requirements, they are not preempted.
However, any other state law claims appellants wish to assert must
be assessed individually in light of Lohr to determine § 360k's
preemptive effect. This sort of analysis should be initially
undertaken by the district court, guided by the Lohr decision.
Thus, we vacate and remand the judgment of the district court on
appellants' products liability claims for further consideration in
light of Lohr and this opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
3