Majority of Claims Survive Preemption Analysis in Smith & Nephew BHR Hip MDL

BALTIMORE — A Maryland federal judge has refused to dismiss state law claims of negligence, failure to warn and breach of warranty in the Smith & Nephew Birmingham Hip Resurfacing hip implant MDL, ruling they are not expressly preempted because they each rest on a violation of federal requirements.

In a March 26 order, Judge Catherine C. Blake of the U.S. District Court for the District of Maryland further held that those claims are not impliedly preempted because they do not attempt to enforce a legal right held by a federal agency or rely on the FDA’s statutory scheme for …