Wyeth v. Levine May Affect Device Litigation, Notwithstanding Riegel v. Medtronic

By James P. Ellison –

Despite the Supreme Court’s 2008 ruling in Riegel v. Medtronic, in which the Court found express preemption for devices subject to premarket approval based on express statutory language, the judge in Minnesota overseeing multi-district device litigation granted the plaintiffs’ motion to amend their complaint to comply with the Court’s recent ruling in Wyeth v. Levine.  The judge’s order is significant because just two months ago this same judge granted a motion to dismiss the claims in those device cases based on preemption.

While it is not clear that the judge overseeing these cases believes that Wyeth affects Riegel and device preemption, the order provides tangible evidence that even if none of the pending bills (here and here) to undo device preemption (which seem to have been motivated by Wyeth) become law, Wyeth may nevertheless have implications for device litigation.