Conklin v. Medtronic, Inc.

          Appeal from the Superior Court in Maricopa County The Honorable Lori Horn Bustamante, Judge No. CV2015-002965 AFFIRMED

          Opinion of the Court of Appeals, Division One 244 Ariz. 139 (App. 2017) VACATED IN PART

          Paul D. Friedman, Jonathan V. O'Steen (argued), O'Steen & Harrison, PLC, Phoenix, Attorneys for Raymond R. Conklin, II and Joanne M. Conklin

          Andrew E. Tauber (argued), Kenneth S. Geller, Mayer Brown LLP, Washington, D.C.; and E. Jeffrey Walsh, Michael T. Liburdi, Nicole M. Goodwin, Greenberg Traurig LLP, Phoenix, Attorneys for Medtronic, Inc., Medtronic PLC, and Medtronic Sofamor Danek USA, Inc.

          Stanley G. Feldman, Miller, Pitt, Feldman & McAnally, P.C., Tucson; and David L. Abney, Ahwatukee Legal Office, P.C., Phoenix, Attorneys for Amicus Curiae Arizona Association of Justice/Arizona Trial Lawyers Association

          Carlyle (Cary) W. Hall, III, John F. Barwell, Polsinelli PC, Phoenix; and Alan J. Lazarus, Drinker Biddle & Reath LLP, San Francisco, CA, Attorneys for Amicus Curiae Product Liability Advisory Council, Inc.

          JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          PELANDER JUSTICE

         ¶1The issue here is whether federal law preempts an Arizona common law failure-to-warn claim based on a medical device manufacturer's failure to submit adverse event reports to the United States Food and Drug Administration ("FDA"). We hold that the claim is impliedly preempted.

         I.

         ¶2 After injuring his hip years ago, Raymond R. Conklin, II experienced chronic pain. In 2008, a physician surgically implanted a Medtronic SynchroMed II 40 ml infusion pump and catheter ("Pain Pump") into Conklin to manage pain. Medtronic, Inc. and Medtronic Sofamor Danek USA, Inc. (collectively, "Medtronic") designed, manufactured, marketed, and sold the Pain Pump.

         ¶3 Conklin underwent hip surgery in 2013 and in the aftermath suffered permanent injury allegedly caused by drug over-infusion from his continued use of the Pain Pump. Conklin and his wife sued Medtronic alleging several common law tort claims, including both strict liability and negligence claims for failure to provide adequate and timely warnings. In those claims Conklin alleged that before his 2013 injury, the FDA sent warning letters to Medtronic, advising it that the Pain Pump was adulterated and misbranded and stating that Medtronic had failed to report adverse events to the FDA after the FDA approved the Pain Pump in its pre-market approval ("PMA") process. Conklin also alleged that before his 2013 injury, the FDA issued two recalls of the Pain Pump regarding the unintentional injection or cessation of drugs, and that after his injury the FDA issued another recall relating to the Pain Pump's unintended delivery of drugs that could result in a drug overdose. Conklin further alleged that Medtronic's failure to report post-PMA adverse events to the FDA in violation of federal law gives rise to liability under Arizona common law.

         ¶4 Medtronic moved to dismiss the claims under Arizona Rule of Civil Procedure 12(b)(6), arguing that all Conklin's claims are expressly and impliedly preempted under federal law. The superior court agreed and dismissed the action against Medtronic with prejudice.

         ¶5 The court of appeals affirmed in part, upholding on preemption grounds the dismissal of Conklin's product liability and negligence claims based on alleged design and manufacturing defects, as well as the claim for breach of express warranty. Conklin v. Medtronic, Inc., 244 Ariz. 139, 142 ¶ 3, 147 ¶ 33 (App. 2017). The court determined that those claims were expressly preempted. Id. at 144-45 ¶¶ 14-17, 146-47 ¶ 26. But the court of appeals vacated the superior court's dismissal of Conklin's failure-to-warn claim, finding it neither expressly nor impliedly preempted. Id. at 145 ¶ 18, 147-48 ¶ 33. In so ruling, the court of appeals followed Stengel v. Medtronic Inc., 704 F.3d 1224 (9th Cir. 2013), in which the Ninth Circuit found no federal preemption of an Arizona failure-to-warn claim like Conklin's. See Conklin, 244 Ariz. at 145-46 ¶¶ 18-25.

         ¶6 The issue Medtronic presents for our review is whether federal law preempts a failure-to-warn claim predicated on a medical device manufacturer's failure to submit adverse event reports to the FDA. We granted review because this legal issue is of statewide importance and likely to recur. Our jurisdiction ...