Majority of Claims in NuBone Action Preempted, 9th Cir. Rules in Upholding Dismissal

SAN FRANCISCO — A federal appeals court has upheld dismissal of a class action accusing Global Medical Inc. of misrepresenting its bone graft product as being FDA-approved, ruling that a majority of the claims are preempted because they are based upon the manufacturer’s alleged violation of the Food, Drug and Cosmetic Act.

In an Aug. 16 order, the 9th Circuit U.S. Court of Appeals further ruled that the breach of contract claim is not preempted, but nevertheless fails because no contract existed between Globus and the plaintiff.

In March 2009, Eugene DeBons was implanted with Globus Medical’s NuBone DBM Putty, …