Claims Against Bone Graft Device Manufacturer Not Preempted, Calif. Judge Rules

LOS ANGELES — Claims that Medtronic Inc. (NYSE:MDT) illegally promoted its bone graft device for off-label use are not preempted under Riegel v. Medtronic Inc. because they are not based on allegations that the manufacturer violated state tort law notwithstanding compliance with federal requirements, a California state judge has ruled.

On Aug. 20, Judge Michael P. Linfield of the Los Angeles County Superior Court further held that the claims are not impliedly preempted under Buckman Co. v. Plaintiffs’ Legal Comm. because the complaint does not contain “fraud-on-the-FDA” claims.

To cure her back pain, April Cabana underwent surgery during which her …