Mears v. Marshall

909 P.2d 212 (1996) 138 Or. App. 476

Janice M. MEARS, Appellant,
v.
William R. MARSHALL, M.D., and Collagen Corporation, Respondents.

9307-04839; CA A85078.

Court of Appeals of Oregon.

Motion for Reconsideration November 17, 1995. Decided January 3, 1996.

Maureen Leonard and Kathryn H. Clarke, Portland, for petition.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

On Appellant's Motion for Reconsideration November 17, 1995.

LEESON, Judge.

Plaintiff moves for reconsideration of our decision in Mears v. Marshall, 137 Or.App. 390, 905 P.2d 1154 (1995), in which we held that plaintiff's common law and tort claims against the manufacturer of a medical device were preempted by the Medical Device Amendments (MDA) of 1976 to the Food, Drug and Cosmetics Act, 21 U.S.C. § 301 et seq. We allow reconsideration but deny plaintiff's request for rehearing in banc and adhere to our opinion.

On October 19, 1995, plaintiff submitted a memorandum of supplemental authorities to inform us that on October 17, 1995, the Ninth Circuit Court of Appeals had issued an opinion holding that the MDA does not preempt state common law and tort claims involving the same medical device at issue in Mears. Kennedy v. Collagen Corp., 67 F.3d 1453 (9th Cir.1995). Because our opinion, which was issued on October 25, 1995, does not mention Kennedy, plaintiff surmises that we failed to consider it. That is incorrect. We considered the Kennedy decision carefully before releasing our opinion and have allowed plaintiff's motion for reconsideration to make it clear that nothing in Kennedy persuades us to alter our opinion.

We are not bound by the Ninth Circuit's decisions on federal questions that are unresolved by the United States Supreme Court. Beason v. Harcleroad, 105 Or.App. 376, 382, 805 P.2d 700 (1991). We consider decisions by all lower federal courts, including the Ninth Circuit, as persuasive authority but employ an independent analysis to reach our own conclusion. Id.; see also Blankenship v. Union Pacific Railroad Co., 87 Or.App. 410, 413-14, 742 P.2d 680 (1987), rev. den. 305 Or. 21, 749 P.2d 136 (1988) (independent analysis of federal question despite a majority view among federal courts that have considered the federal question). We are unpersuaded by the Ninth Circuit's analysis in Kennedy. We also note that the preemption analysis presented in Kennedy has subsequently been rejected in Martin v. Telectronics Pacing Systems, Inc., 70 F.3d 39 (6th Cir.1995), in which the Sixth Circuit joined the First, Third, Fourth, Fifth, Seventh, Eighth and Eleventh Circuits in holding that state common law and tort claims may be preempted by the MDA.

Plaintiff also argues that our opinion relies on dictum in Anguiano v. E.I. DuPont De Nemours & Co., Inc., 44 F.3d 806, 809 (9th Cir.1995), which was repudiated in Kennedy. See Kennedy, 67 F.3d at 1457 n. 1 (dictum in Anguiano that Congress intended that MDA preempt state tort law was "either overbroad or not intended to be taken literally," but in any event was incorrect). Plaintiff is mistaken. We mentioned the dictum in Anguiano in a footnote merely to point out that the Ninth Circuit had approvingly cited cases from the First and Fifth Circuits. Mears, 137 Or.App. at 399 n. 6, 905 P.2d 1154. We neither relied on Anguiano nor considered ourselves bound by the cases it cited to reach our conclusion.

Plaintiff also argues that we erred in our interpretation of the express preemption provision of the MDA, 21 U.S.C. § 360k, because Congress cannot preempt state tort law or common law claims and at the same time fail to provide a substitute civil remedy without violating the Tenth Amendment to the United States Constitution. That issue was not argued to the trial court, nor was it presented by plaintiff on appeal. See ORAP 5.45 (assignments of error must be matter preserved in the lower court and set out in the opening brief). A motion for reconsideration is not the proper vehicle for making an argument for the first time. Frogge v. US West Communications, Inc., 124 Or.App. 669, 670, 863 P.2d 1313 (1993), rev. den. 319 Or. 36, 876 P.2d 782 (1994).

Reconsideration allowed; request for rehearing in banc denied and opinion adhered to.