STORY FROM: Drugs & Medical Devices

11th Cir. Reinstates Negligence, Strict Liability Claims Against Smith & Nephew in Hip Replacement Action

TAMPA, Fla. — A federal appellate court has reinstated claims against Smith & Nephew Inc. in a Birmingham Hip Resurfacing System lawsuit, ruling that they are not preempted by federal law because they are not based solely upon a “fraud-on-the-FDA” theory and seek to enforce state requirements that parallel federal law.

However, in the June 26 published opinion, the 11th Circuit U.S. Court of Appeals upheld dismissal of the plaintiff’s “improper training” and “failure to report” claims, ruling that they are impliedly preempted because they would conflict with the FDA’s duty to police fraud. The court also upheld dismissal of ...

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Carlton Fields Jorden Burt
Robert O'Connell

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