United States: New Jersey Finds Preemption In Breast Implant Litigation

Last Updated: January 11 2019
Article by Michelle Yeary

While 2019 is solidly under way, we're still catching up on a sizable number of favorable decisions to have come down right before the new year. That's certainly not a complaint. We love a full plate of defense wins. So, for today's post we're reaching back a few weeks to tell you about a decision coming out of Middlesex County Superior Court in New Jersey in what we believe is the first ever decision on a motion to dismiss in a case alleging breast implant associated-anaplastic large cell lymphoma (BIA-ALCL). BIA-ALCL has been receiving a decent amount of publicity recently as well as significant regulatory activity since 2011. And this is one of several BIA-ALCL cases pending in New Jersey. So, the decision is significant as a case of first impression with hopefully trend-setting implications.

The case is Cashen v. Johnson & Johnson, 2018 WL 6809093 (N.J. Super. Law Div. Dec. 24, 2018). Plaintiff underwent surgery in 2008 during which defendant's breast implants were implanted. In 2016, plaintiff was diagnosed with ALCL requiring surgery to remove infected lymph nodes and chemotherapy. Id. at *2. The parties agreed that Ohio law governed plaintiff's claims as that is where the alleged injury arose. Plaintiff brought claims for fraudulent misrepresentation, fraudulent concealment, consumer protection, design/warning/manufacturing under the Ohio Products Liability Act ("OPLA"), and express warranty. Defendant moved to dismiss all claims on both preemption and substantive state law grounds. Id.

Because the breast implants are pre-market approved medical devices, they are subject to express preemption under Riegel v. Medtronic, 552 U.S. 312 (2008) if plaintiff's claims seek to impose state law requirements that are different from or in addition to the federal requirements imposed as part of the PMA process. Id. at *5. The court found that was the case with respect to plaintiff's fraudulent misrepresentation and concealment claims:

Inherent in the FDA's approval of the product is its finding that the product and its label have met the federal requirements as a Class III medical device. Therefore, it stands that any claims of fraudulent misrepresentation and fraudulent concealment seek to either (1) impose different or additional requirements to those that the FDA has already determined to have been satisfied or (2) stand in the place of the FDA and enforce federal requirements. The former would make the claims expressly preempted while the latter would be impliedly preempted.

Id. at *7. Plaintiff attempted to bypass preemption by arguing that her fraud claims were "not based on the safety or effectiveness of the implants." Id. Which was belied by the allegations of the complaint that focus on "serious physical harm" and misrepresentations about "safety" of the product.

The court also found that under Ohio law, plaintiff's fraudulent misrepresentation and fraudulent concealment claims were abrogated under the OPLA. The text of the OPLA provides that it abrogates all common law products liability claims. Id. at *8. And Ohio courts have determined that fraud claims premised on a failure to warn or a duty to make additional warnings are products liability claims subsumed under the OPLA. Again, plaintiff attempted to re-write her complaint and argued that her fraud claims were premised on a general duty not to deceive rather than on a duty to warn. Id. But the court again found that argument contradictory to the allegations of the complaint which were clearly focused on concealments regarding safety – like a failure to warn claim.

Next up was plaintiff's claim for violation of the Ohio Consumer Sales Practices Act ("OCSPA"). Here the court opted not to decide the federal preemption question, instead relying on the abrogation of the claim by the OPLA. The court noted that under Ohio law, medical devices are not considered consumer goods under the OCSPA. Id. at *9.

Which then brings us to the plaintiff's OPLA claims for design, warning, and manufacturing defect. Because the implants were PMA approved, they have "satisfied the FDA's strictest requirements for medical devices." Id. at *10. Therefore, any claim for design defect must be preempted "because any alternative design would violate the product's PMA." Id. As for plaintiff's manufacturing defect claim, it was premised on "generic allegations" lacking the specificity required to overcome preemption. Plaintiff's warning claim likewise failed because the FDA had already approved the implant's warnings, making any state law finding that the warning was inadequate a different requirement. Id.

Plaintiff's breach of express warranty claim suffered the same fate. The claim would ask the jury to find that the product was not safe and effective as labeled – which would be in direct conflict with the FDA's PMA conclusions. Id. at *11.

As if that wasn't enough – the icing on this cake is that the dismissals were with prejudice. Plaintiffs had sought leave to amend but it appears the court concluded that amendment would be futile given the preemption analysis.

Congratulations to Dustin Rawlins, Peter Choate, Monee Hanne, and Rachel Byrnes at Tucker Ellis and Michael Zogby and Jessica Brennan at Drinker Biddle on this excellent decision.

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

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