August 28, 2018 Top Story

Careful Pleading Key after Unprecedented Preemption Ruling

Express preemption in hybrid device case based on nature of plaintiffs’ alleged injuries

C. Thea Pitzen

When a hip replacement system fails and products liability litigation ensues, is the “device” at issue the entire system, or rather its component parts?

When a hip replacement fails, what should be blamed--the product as a whole or its various components?

When a hip replacement fails, what should be blamed--the product as a whole or its various components?

iStockphoto by Getty Images

A new products liability decision answers that question and provides guidance on federal preemption in cases where state law claims challenge “hybrid” medical devices comprised of multiple components requiring varying degrees of regulation. ABA Section of Litigation leaders caution that going forward, cases involving hybrid devices will require careful pleading because the way plaintiffs allege injury will affect whether they are allowed to proceed with state law claims.

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