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# Appeals Court Rejects Bard Preemption Defense
- URL: https://www.fdaweb.com/appeals-court-rejects-bard-preemption-defense/
- Published: 2020-08-14T12:00:00.000Z
- Updated: 2026-09-14T16:25:01.000Z
- Author: David McFarland
- Tags: Devices, #legacy-id-D5147437

The 9th Circuit Court of Appeals has rejected device preemption arguments from C.R. Bard in a product liability lawsuit involving the company’s G2 Intravascular Filter. The panel of judges [affirmed](https://cdn.ca9.uscourts.gov/datastore/opinions/2020/08/13/18-16349.pdf?ref=fdaweb.com) a lower court’s ruling in favor of the plaintiff and rejected Bard’s motion for summary judgment that argued the federal Medical Device Amendments of 1976 preempted all state-law claims.

The appeals court was reviewing a 2018 Arizona federal court decision that awarded plaintiff **Sherr-Una Booker** $3.6 million in damages due to alleged injuries suffered because of the device.

The panel held that Bard’s preemption argument “failed because plaintiff’s claim rested on an asserted state-law duty to warn of the risks posed by the particular design of Bard’s G2 Filter, and the FDA had not imposed any requirements related to the design of that device or how a device of that design should be labeled.” Bard also argued that the lower court erred in denying summary judgment on plaintiff’s negligent failure-to-warn claim because Georgia law did not recognize a duty to warn of the comparative risks posed by different products. They held that “Georgia courts had not adopted a categorical prohibition on basing a failure-to-warn claim on the absence of a comparative warning.” The panel concluded that the district court correctly allowed a jury to decide the warning’s adequacy.