United States: Spoiler Alert: Florida Appellate Court Upholds PMA Preemption And Rejects Parallel Claim

Over the years, comedian Adam Carolla has played the "Germany or Florida" game on his various radio and tv programs and podcasts. The game is based on the observation that many of the most bizarre stories of human ineptitude come from Germany or Florida. Callers describe News of the Weird headlines, and Carolla and guests try to guess whether the events happened in Germany or Florida. You can listen to this segment from the old Loveline radio show.

Here are some examples of "Germany or Florida" clues:

  1. Man ate his dog.
  2. Carjacker forced to flee after realizing he could not drive a stick-shift.
  3. Trio shoots at imaginary foe, thereby attracting police to their homegrown meth lab.
  4. Naked swimmer hospitalized after angler hooks his penis.
  5. Man dies after blowing up condom machine.
  6. Sister assaults twin over sexy toy.
  7. Government creates blatant ex post facto law depriving tobacco companies of basic tort defenses.

Okay, you probably know about that last one. The answers to the others are below. By the way, Carolla is not alone in identifying The Sunshine State as also being The Sublimely Strange State. 30 Rock had a running gag about Florida craziness. See examples here. Also, Seth Meyers on the Late Show runs a "Fake or Florida" bit that can, at best, be charitably labeled as being derivative of Carolla's gag. On last Sunday's Last Week Tonight, John Oliver reported a story about a Florida man who planned to bomb Target stores up and down the east coast, with the idea of buying up Target stock on the cheap afterwards. After pointing out how the story involved home-made explosives, a big box store, and a terrible get-rich-quick scheme, Oliver noted that if the story also had a snake on meth, we would have full-on Florida Bingo.

Even before we earned our law license, we were aware that there is something ... different ... about Florida's legal system. In our law school library, you could pull the 12 So. 2d volume off the shelf and it would automatically open up to the Lason v. State case, in which the Florida Supreme Court upheld the conviction of a 76 year old man for "abominable and detestable crimes against nature." Some law school libraries have needed to insert photocopies of the Lason case after the original pages were worn out completely. Good times.

Last week there was a mini-eruption of Florida case law, and we will cover some of those opinions this week. It is not quite Shark Week for our blog, but it is close. Today's case, Wolicki-Gables v. Doctors Same Day Surgery, Ltd., 2017 WL 603316 (Fla. DCA 2d Feb. 15, 2017), is unusual. The case is ostensibly about spoliation, but it is really about preemption and the dreaded parallel claim exception. Luckily, the case comes out the right way. But getting there was like doing a couple of laps on Mr. Toad's Wild Ride. (You didn't think you were getting out of this blogpost without at least one Disney World reference, did you?)

Mrs. Wolicki-Gables claimed a physical injury from a failed pain pump system. She and her husband initially sued the manufacturer of the pain pump, alleging causes of action for strict liability and negligence. The case was filed in state court, but was then removed to federal court. The pain pump system had received pre-market approval from the FDA. Because of that fact, and because of the Supreme Court's decision in Riegel, the federal court held that the Wolicki-Gables' product liability claims against the manufacturer were preempted by federal law. The Eleventh Circuit affirmed the summary judgment in favor of the manufacturer.

All of this happened before we get to the case at issue. Our summary of the federal proceedings left out a detail that proved important until it ended up being unimportant. About a year after the pain pump system was implanted in Mrs. Wolicki-Gables, it was removed because it did not seem to be working properly. The explanting surgeon hypothesized that the connector between the pump and catheter had malfunctioned. The surgeon replaced the connector and then reinserted the pain pump system into Mrs. Wolicki-Gables. The plaintiffs asked for the old connector, but the doctor refused. He said that the old connector had to go to the manufacturer for testing. The manufacturer eventually tested the old connector, found no defect, and then destroyed it in accordance with company policy. Meanwhile, Mrs. Wolicki-Gables suffered complications, including inflammation of the spinal cord. The pain pump was permanently removed. The plaintiffs again asked for the old connector, but it was long gone.

By now you can see the possible makings of some sort of spoliation claim, can't you? After losing their case against the manufacturer in federal court, the plaintiffs filed a third-party spoliation claim against the surgery center in state court. The plaintiffs alleged that but for the surgery center allowing the manufacturer to take the old connector, they could have prevailed against the manufacturer both on a first party spoliation claim as well as a negligent design/manufacture theory. It's hard to believe that the plaintiffs could prevail on this third-party theory after losing on the underlying first-party theory, right? Right. The Florida court treats us to a nice summary of federal preemption law, analyzing the holdings of Lohr, Buckman, and Riegel. For PMA medical devices such as the pain pump system here, the federal MDA preempts any state requirement that is "different from, or in addition to the requirements imposed by federal law." By now we are all familiar with the "parallel claim" theory/dicta/pain in the backside, but we should also be familiar with the prohibition against plaintiffs simply filing private actions to vindicate the requirements of federal law. The Wolicki-Gables court characterized Buckman as SCOTUS being "willing to permit state law causes of action based on violations of state law requirements that mirrored federal law requirements, but it was unwilling to permit a state law cause of action based upon a violation of federal law." Wolicki-Gables, 2017 WL 6033316 at *4. After Lohr, Buckman, and Riegel, there is only a "narrow gap through which a plaintiff's state law claim must fit if it to escape express or implied preemption" under the MDA. Id. at *5. You have doubtless seen the "narrow gap" formulation before. But you probably have not seen a formulation like this before: "An MDA parallel claim is much like a unicorn – existing in legend, but elusive in reality." Id. That is pretty strong and good (and poetic) stuff from a Florida state court.

Was there such a unicorn to ride in to rescue the plaintiffs' claims in Wolicki-Gables? Nope. The plaintiffs' odd third-party spoliation claim amounted to a contention that, "with the old connector in hand, they could demonstrate that [the manufacturer] did not manufacture the connector in compliance with PMA requirements. Their only basis to proceed is by a parallel claim. Their proposed theory, however, lacks a firm footing under Florida law." Id. at *6. The court concluded that Florida Supreme Court precedent prohibited "creation of a private civil cause of action in Florida for violation of a federal statute absent legislative intent to do so." Id. There was no such legislative intent here. Hence, the plaintiffs' third-party spoliation claim in state court met the same fate as the first-party product liability claims in federal court: summary judgment for the defendant.

In some ways, the Wolicki-Gables decision is a unicorn. Before last week, there had been plenty of federal courts holding that in PMA cases there are no parallel claims because Florida law does not independently recognize them. With Wolicki-Gables, we now have the first Florida state appellate court that affirms these principles. Bingo, indeed.

Answers to the "Germany or Florida" quiz: 1 (Florida). 2. (Germany). 3. (Florida). 4. (Germany). 5. (Germany). 6. (Florida).

This article is presented for informational purposes only and is not intended to constitute legal advice.

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