C.D.  Cal. Holds that Breast Implant Manufacturing Defect Claims are Expressly Preempted

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Earlier than we dive into right this moment’s case, Avrin v. Mentor Worldwide LLC, 2024 WL 115672 (C.D. Cal. March 15, 2024), we provide two preliminary observations:

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2. Categorical preemption for medical units applies to manufacturing defect claims.  We’d wish to assume that could be a self-evident proposition.  However we encounter many plaintiff legal professionals and, sadly, some courts, that assume that whereas specific preemption would possibly put the kibosh on design defect and warning claims, manufacturing defect claims by some means escape preemption.  We’re engaged on a number of circumstances the place our preemption notion eradicated each product legal responsibility declare … save for manufacturing defect.  We even have circumstances the place manufacturing defect was the one declare, as if the plaintiff thought that such leanness or restraint would keep away from a preemption headache.  To make certain, the manufacturing defect claims are sometimes design defect claims in disguise.  Furthermore, most manufacturing defect claims by no means get to the end line, as a result of there may be merely no proof of any deviation from design specs.  Moderately, the manufacturing defect declare presumes that an alleged malfunction itself proves the manufacturing defect.  Mistaken. However wouldn’t or not it’s splendid if we may head off all these debates by embracing our outdated good friend, preemption?

That’s what the court docket did in Avrin.  The plaintiff alleged that she developed Breast Implant Related Anaplastic Massive Cell Lymphoma (BIA-ALCL) from implantation of the defendant’s textured breast implants.  (The identify of the damage will not be nice from the angle of a defendant contesting medical causation.) The plaintiff alleged that the method of manufacturing the defendant’s textured shell produces adulterated implants with extreme silicone particles fragments and particles that remained on the implants in violation of the FDA’s high quality system regulation and present good manufacturing apply (CGMP) necessities. 

It’s not exhausting to see how the plaintiff was making an attempt to evade 21 USC part 360k(a), which bars any declare that will impose any well being security oriented  requirement on a Pre-Market Accredited (PMA) medical system (which the category III breast implants are) that’s “totally different from, or along with, any requirement” developed by the FDA. The plaintiff’s proposed evasion follows the “parallel declare” route, through which the plaintiff asserts that the medical system violates each federal and state legislation.  A parallel declare should navigate the “slim hole” between merely implementing federal legislation or contradicting it, neither of which is permissible. 

The plaintiff’s manufacturing defect declare assaults the method by which the defendant manufactures the implants at concern. As such, the declare would require the defendant “to have manufactured, designed, or marketed the [implants] in a fashion totally different from, or along with, the FDA’s PMA of the [implants].”  The plaintiff argued that she was not asking to impose any requirement totally different from or along with the federal laws; slightly, her claims paralleled federal necessities that merchandise be manufactured in conformance with CGMP and never be “adulterated.”  

This maneuver is nothing new. It appears to be half of the present plaintiff lawyer playbook. Generally they get away with it. Generally they don’t. 

Avrin is within the latter, happier, sane class. The Avrin court docket reasoned that “saying the implants have been ‘adulterated’ doesn’t invoke a magic phrase that robotically saves plaintiffs’ claims from preemption.”  If the plaintiff succeeded in her lawsuit, she would power the producer to cease utilizing the exact manufacturing course of accredited by the FDA.  Furthermore, as a result of her declare was that the method brought on not solely her breast implants to be “adulterated,” however many or the entire related implants to be adulterated, the lawsuit would “encourage, and in reality require, lay judges and juries to second-guess the balancing of advantages and dangers of a selected system to their meant affected person inhabitants — the central function of FDA — generally on behalf of a single particular person or group of people.”  

It’s good to know that “magic phrases” comparable to manufacturing defect, adulteration, or CGMP don’t make medical system preemption disappear.  Chalk Avrin up as one for the great guys, and be able to cite it the subsequent time your consumer will get hit with the manufacturing defect/adulteration evasion. 

The plaintiff additionally alleged failure to warn. There was a selection of legislation query as as to whether California or Colorado legislation utilized.  California might need acknowledged a declare for failure to warn based mostly on failure to report opposed occasions (boo/hiss), whereas Colorado legislation wouldn’t. The plaintiff was a resident of Colorado, Colorado had the larger curiosity in having its legislation utilized to its residents, so Colorado utilized, and, due to this fact, the failure to warn declare was a goner.  

We’re grateful to Dustin Rawlin for sending this case our means, and we congratulate him, Monee Hanna, Rachel Byrnes, and the complete Nelson Mullins group for incomes such a superb consequence.

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