Amicus News

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