In Lawrence v. Medtronic Inc., No. 27-cv-13-1197, slip op. (Minn. D. Ct. 4th July 7, 2013), a Minnesota state trial court ruled that the plaintiff’s fraud claims may fit into a narrow gap in the preemption doctrine established by the U.S. Supreme Court’s decisions in Riegel v. Medtronic, 552 U.S. 312 (2008), and Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001). But the court nonetheless dismissed those claims on the basis of pleading insufficiency.
The plaintiff claimed that he was injured after being implanted with Medtronic’s bone graft device through an unapproved surgical procedure alleged promoted by Medtronic. Plaintiff sued on numerous state law grounds including negligence, negligence per se, strict liability, breach of warranty, fraud and constructive fraud, and violation of state consumer protection statutes. The court found all but the fraud-based claims either expressly or impliedly preempted under Riegel and Buckman.
With respect to the fraud claims, the court noted that a plaintiff may “navigate carefully” to fit into a “narrow gap . . . [between] express or implied preemption.” Lawrence, slip op. at 7. A state law claim can survive preemption, the court said, when it is premised on conduct that “(1) violates the FDCA and (2) would give rise to a recovery under state law even in the absence of the FDCA.” Id. The court recognized that to the extent plaintiff claimed Medtronic “provided false and misleading information to them in the process of promoting the off-label use of the [bone graft] device, and that [plaintiff] relied upon such misrepresentations, . . . [plaintiff’s] fraud-based claims have the potential to escape both express and implied preemption.” Id. at 13. Ultimately, however, the court dismissed plaintiff’s fraud claims without prejudice (and with leave to amend) for failure to plead with requisite particularity. Id. at 15.
The Lawrence case is a reminder of the importance of coupling preemption motions with pleadings arguments. Even if there is room between Riegel and Buckman for a theoretical claim to survive preemption, plaintiffs must actually plead a valid and sufficient cause of action to survive dismissal.