Resubmitted Portland, Oregon January 13, 2015.
As Corrected January 27, 2015.
Appeal from the United States District Court for the District of Oregon. D.C. No. 6:07-cv-01309-AA. Ann L. Aiken, Chief District Judge, Presiding. Argued July 10, 2012, Submission Deferred July 12, 2012.
The panel vacated the district court's judgment, and remanded for a new trial, in a diversity action alleging common law claims for negligence and strict products liability. The panel dismissed, as moot, the cross appeal challenging the district court's denial of costs.
Christina McClellan alleged she suffered injuries after she was prescribed continuous infusion of a painkiller, delivered through a PainBuster infusion pump device, I-Flow. The PainBuster is regulated under the Medical Device Amendments of 1976 (MDA) to the Food, Drug & Cosmetics Act. The district court declined to give some of McClellan's requested jury instructions under Oregon law based on the court's conclusion that they were preempted by federal law.
The panel held that there was appellate jurisdiction because judgment was entered as to all the defendants. The panel held that the presumption against federal preemption of state law applied to this case. The panel held that McClellan's case was not controlled by Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 121 S.Ct. 1012, 148 L.Ed.2d 854 (2001) (holding that the state law claims were preempted because the state law claims enjoyed no presumption against preemption and were in conflict with the MDA). The panel further held that McClellan's requested jury instructions did not conflict with the congressional intent behind the MDA, and would not usurp the exclusive federal enforcement power over the MDA. The panel concluded that no federal preemption applied, and the district court's refusal to give the requested jury instruction was not harmless error. The panel remanded for a new trial due to the instructional error with leave to the district court to determine in the first instance whether the requested instructions were otherwise appropriate under Oregon law.
R. Daniel Lindahl, (argued), Lindahl Law Firm PC, Portland, Oregon, Leslie W. O'Leary, (substituted for R. Daniel Lindahl), Portland, Oregon, Jeffrey B. Wihtol, Law Offices of Jeffrey B. Wihtol, Portland, Oregon, for Plaintiff-Appellant/Cross-Appellee.
Andrew G. Klevorn, (argued), Katten Muchin Rosenman, LLP, Chicago, Illinois and James W. Joseph, Elmer Stahl, LLP, Chicago, Illinois. Eric J. Neiman, George S. Pitcher, Williams, Kastner & Gibbs, PLLC, Portland, Oregon, for Defendants-Appellees/Cross-Appellants I-Flow Corp.; Richard H. Nakamura, Jr., (argued) Morris Polich & Purdy LLP, Los Angeles, California, Patrick Lysaught, Baker Sterchi Cowden & Rice, LLC, Kansas City, Missouri, Roger G. Perkins, Morris Polich & Purdy LLP, San Diego, California, for Defendants-Appellees/Cross-Appellants DJO, LLC and DJO, Inc.
Before: Alfred T. Goodwin, Harry Pregerson, and Morgan Christen, Circuit Judges. Opinion by Judge Goodwin.
GOODWIN, Circuit Judge:
Christina McClellan appeals the judgment entered in favor of defendant-appellees after a jury trial. Defendant IFlow Corporation cross-appeals the district court's denial of costs. We vacate and remand for ...