Devices

Appeals Court Overturns Preemption-related Dismissal

A federal appeals court has overturned a district court decision to dismiss, due to federal preemption, product liability claims under the Connecticut Product Liability Act (CPLA) involving Bausch & Lomb’s Trulign Toric intraocular lenses. The federal appeals court ruling will now allow the product liability case to proceed.

In Glover v. Bausch & Lomb, the district court earlier dismissed the complaint, concluding that injury claims under the CPLA were expressly
and impliedly preempted by the Federal Food, Drug & Cosmetic Act. The Second Circuit Court of Appeals said that it asked the Connecticut Supreme Court to weigh in during its preemption analysis on “unresolved questions of state law.”

The Second Circuit said that the Glovers’ CPLA claims “can proceed, if at all, only if the CPLA provides a cause of action based on a manufacturer’s failure to report adverse events to a regulator like the FDA, or to comply with post-approval requirements set by that regulator.” It notes that the Supreme Court of Connecticut has advised that the “CPLA provides precisely that cause of action. The CPLA claims pleaded in the complaint thus fall into the ‘narrow gap’ that is neither implicitly nor explicitly preempted under the FDCA: the Glovers are ‘suing for conduct that violates the FDCA . . . , but [they are not] suing because the conduct violates the FDCA.’”

The appeals court concluded that the Glovers’ cause of action is based on “traditional state tort law which . . . predated the federal enactments in question.”

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Gupta Raises Concerns About Overton’s Independence, Ideology

Overton Confirmation Remains Uncertain After Senate Hearing

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