Amicus
News
No.
4. May 10, 1996
10th Circuit
Delays Preemption Ruling
In an
order dated April 26, 1996, the U.S. Court of Appeals for the Tenth Circuit
issued an order delaying consideration of Oja v. Howmedica, Inc.,
No. 95-1085. At issue in the appeal is preemption of product liability claims
by the Medical Device Amendments. The 10th Circuit order removed the case
from consideration until after the U.S. Supreme Court his issued its decision
in Lohr v. Medtronic.
Maureen
Oja filed a products liability action alleging injury when her Howmedica
hip replacement fragmented, causing serious injuries. Howmedica moved for
summary judgment, arguing that the cause of action was preempted by the
Medical Device Amendments to the Food, Drug and Cosmetic Act. Judge Jim
R. Carrigan (D. Colo.) denied the motion, finding that the FDA had established
no specific requirement for the hip replacement. Judge Carrigan rejected
the 1st Circuits broad preemption position as unpersuasi ve. See 848 F.
Supp. 905 (D. Colo. 1994).
The court
of appeals decision was awaited because the Tenth Circuit is the only circuit
yet to take a position on the preemptive effect of the MDA.
AAJ filed
an amicus curiae brief in the case.
A copy
of AAJs amicus brief can be downloaded from AAJ/NET at www.justice.org
in the Courts section. A limited number of bound copies are available upon
request to Jeffrey White.
Phone:
202-965-3500 x310
FAX: 202-955-0920
E-Mail:
jeffrey.white@justice.org
|
