Split Preemption Ruling Issued in BHR Hip Federal MDL

BALTIMORE — The Maryland federal judge overseeing the Birmingham Hip Resurfacing multidistrict litigation docket has refused to dismiss strict liability, warranty and fraud claims relating to the BHR-THA and R3-THA systems and components, rejecting Smith & Nephew’s argument that they are preempted by federal law.

In an Aug. 5 order, Judge Catherine C. Blake of the U.S. District Court for the District of Maryland noted that those systems and components are not governed by 360k(a) because they did not receive premarket approval. As such, claims relating to those devices are not preempted by the Medical Device Amendments to the Food, …