Mears v. Marshall
Decision Date | 10 September 1997 |
Citation | 944 P.2d 984,149 Or.App. 641 |
Parties | , 33 UCC Rep.Serv.2d 733, Prod.Liab.Rep. (CCH) P 15,062 Janice M. MEARS, Appellant, v. William R. MARSHALL, M.D., and Collagen Corporation, Respondents. 9307-04839; CA A85078. |
Court | Oregon Court of Appeals |
Maureen Leonard, Portland, argued the cause for appellant. With her on the briefs was Kathryn H. Clarke.
Janet Schroer, Portland, argued the cause for respondent William R. Marshall, M.D. With her on the brief was Hoffman, Hart & Wagner.
Joe W. Redden, Jr., Houston, TX, argued the cause for respondent Collagen Corporation. With him on the brief were Eric J. Neiman, Portland, Tooze Duden Creamer Frank & Hutchinson, Curt Webb and Beck, Redden & Secrest, Houston, TX.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
The Oregon Supreme Court remanded this case for further consideration in the light of Medtronic, Inc. v. Lohr, 518 U.S. ----, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996), which was decided by the United States Supreme Court after our decision in Mears v. Marshall, 137 Or.App. 390, 905 P.2d 1154 (1995), on recons. 138 Or.App. 476, 909 P.2d 212 (1996), vac'd 324 Or. 130, 921 P.2d 966 (1996). The issue is whether various state tort claims are preempted by the Medical Device Amendments of 1976 (MDA) to the Food, Drug and Cosmetics Act, 21 U.S.C. § 301 et seq. In our previous decision, we concluded that a number of the state claims at issue were preempted and upheld the trial court's grant of summary judgment for defendants as to those claims. In the light of the two-pronged test set forth in Medtronic, we conclude that plaintiff's state law claims are not preempted. Consequently, we reverse the trial court's grant of summary judgment to defendants and remand.
We recite the facts as they appeared in our initial opinion:
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CHAPTER § 9.05 Preemption
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