Off-Label Promotion Claims in Infuse Case Not Preempted, Ill. Appeals Court Says

CHICAGO — Claims that Medtronic marketed its Infuse bone graft device for off-label use are not preempted because they parallel state law requirements that prohibit the omission of material risks of the device when marketing a device, an Illinois appeals court has ruled.

However, in the Sept. 20 opinion, the Illinois Court of Appeals, 1st District, found the plaintiffs’ claims are barred by the learned intermediary doctrine there are no allegations that the plaintiff’s surgeon relied on the alleged promotional marketing. However, the court gave the plaintiffs the opportunity to amend their complaint.

Senayda Norabuena sought treatment for back and …