Most Claims Survive Preemption In Suit Over Off-Label Use of Infuse Device

Federal medical device law does not preempt fraud, failure-to-warn, negligence, or express warranty claims by an Oregon man alleging harm from off-label use of Medtronic Inc.'s Infuse spinal surgery device, the U.S. District Court for the District of Oregon said Sept. 6 (Alton v. Medtronic, Inc., D. Or., 3:13-cv-00409-PK, 9/6/13).

The allegations stated independent claims under Oregon product liability law, so implied preemption principles are inapplicable, the court said.

The court found no express preemption either, saying plaintiff Richard D. Alton’s claims imposed state requirements that were parallel to Medtronic’s obligations under federal law. The court denied ...