Summary
In Berger v. Medtronic. Inc., supra at 556, the Appellate Division, Second Department relying on the aforementioned Federal Circuit Court cases held that a common-law tort cause of action based on an allegedly faulty pacemaker lead was properly dismissed as being preempted by the provisions of the Medical Device Amendments (MDA), 21 U.S.C. § 360k.
Summary of this case from Heymach v. Cardiac PacemakersOpinion
July 29, 1996
Appeal from the Supreme Court, Queens County (Milano, J.).
Ordered that the appeal from so much of the order dated March 14, 1995, as denied the branch of the defendant's motion which was for summary judgment dismissing the plaintiff's cause of action to recover damages for breach of an implied warranty is dismissed, without costs or disbursements, as that part of the order was superseded by the branch of the order dated July 6, 1995, which, upon reargument, dismissed the plaintiff's cause of action to recover damages for breach of an implied warranty; and it is further,
Ordered that the order dated March 14, 1995, is affirmed insofar as appealed from and reviewed, without costs or disbursements; and it is further,
Ordered that the order dated July 6, 1995, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The Supreme Court properly dismissed the plaintiff's cause of action to recover damages for breach of an implied warranty as being preempted by the provisions of the Medical Device Amendments, 21 U.S.C. § 360k (see, Michael v. Shiley, Inc., 46 F.3d 1316; Martello v. Ciba Vision Corp., 42 F.3d 1167; Mendes v Medtronic, Inc., 18 F.3d 13; King v. Collagen Corp., 983 F.2d 1130; Richman v. Gore Assocs., 881 F. Supp. 895). Moreover, we agree with the Supreme Court's denial of the branch of the defendant's motion which was to dismiss the plaintiff's cause of action to recover damages for breach of an express warranty. Under the circumstances presented here, whether the plaintiff's cause of action to recover damages for breach of an express warranty is Federally preempted by the Medical Device Amendments cannot be determined on the papers submitted on the defendant's motion for summary judgment (see, Duvall v. Bristol-Myers-Squibb Co., 65 F.3d 392; see also, Michael v. Shiley, Inc., supra; cf., King v. Collagen Corp., supra; Martello v. Ciba Vision Corp., supra). Bracken, J.P., Miller, Copertino and Krausman, JJ., concur.