In McClellan v. I-Flow Corp., 776 F.3d 1035 (9th Cir. 2015) (No. 11-35109), the Ninth Circuit reviewed the decision of a district court to exclude from the jury charge certain state law tort instructions on the ground that state law was preempted by the Medical Device Amendment.  Plaintiff sued for personal injury resulting from use of defendant’s continuous infusion pump device, asserting two claims, one for negligence based on inadequate product warnings, and the other for strict liability alleging that the product was unusually dangerous due to inadequate warnings.  Defendants argued below that state law jury instructions should not be given to the jury because they were preempted by the federal Food Drug & Cosmetics Act, relying on the Supreme Court preemption decision inBuckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341 (2001).  The district court agreed, but the Ninth Circuit reversed, distinguishing the Buckman decision as addressing state law “fraud-on-the-FDA” claims.  In Buckman, the Supreme Court had held that the state law claims that rested upon allegations of fraud on federal agencies were preempted by federal law.  Here, however, the court reasoned, plaintiff’s claims did not rest upon allegations of fraud against federal agencies and, therefore, the state law instructions were not preempted.  Consequently, the court concluded that the jury charge was erroneous as a matter of law and remanded the case to the district court for a new trial.