BSCR obtained summary judgment in a medical device product liability case filed in Tenth Judicial District of Kansas (Johnson County). Plaintiff brought suit against our clients, the entities that designed, manufactured and sold the medical device implanted during plaintiff’s gastric bypass procedure, and asserted liability theories sounding in negligence, strict liability and breach of warranty. Plaintiff also named her healthcare providers as defendants. After a successful change of venue motion, we filed a motion for summary judgment on preemption grounds as the medical device received pre-market approval by the FDA and as such under Riegel v. Medtronic, Inc., each of plaintiff’s claims should be preempted. Plaintiff argued that a post-sale voluntary recall of the device equated to a revocation by the FDA of its pre-market approval and, therefore, preemption is improper. The court granted our motion for summary judgment finding that each of plaintiff’s claims against the medical device manufacturer were preempted notwithstanding the voluntary recall.
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