| Mitaro v Medtronic, Inc. |
| 2010 NY Slip Op 04558 [73 AD3d 1142] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Norma Mitaro et al., Appellants, v Medtronic, Inc., AlsoKnown as Medtronic, et al., Respondents, et al., Defendants. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (William P. Harrington of counsel), andMayer Brown LLP, New York, N.Y. (Hector Gonzalez, Mauricio A. Espana, David M. Gossett[pro hac vice], and Daniel L. Ring [pro hac vice], of counsel; Kenneth S. Geller, Carl J.Summers, Herbert L. Zarov, Stephen J. Kane on the brief), for respondents (one brieffiled).
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal, aslimited by their brief, from so much of an order of the Supreme Court, Westchester County(Nicolai, J.), entered April 9, 2009, as granted those branches of the motion of the defendantsMedtronic, Inc., also known as Medtronic, Medtronic Puerto Rico, Inc., Medtronic InternationalTechnology, Inc., Medtronic Puerto Rico Operations Co., Inc., Medtronic Puerto RicoOperations Co., and Medtronic USA, Inc., which were pursuant to CPLR 3211 (a) (2) to dismissthe causes of action alleging strict liability based on failure to warn and defective design,negligence, negligence per se, and breach of implied warranty insofar as asserted against themfor lack of subject matter jurisdiction based upon federal preemption.
Ordered that the order is affirmed insofar as appealed from, with costs.
Contrary to the plaintiffs' contentions, the causes of action alleging strict liability based onfailure to warn and defective design, negligence, negligence per se, and breach of impliedwarranty are preempted by the Federal Drug Cosmetics Act, as amended by the Medical DeviceAct of 1976 (hereinafter the MDA) (see 21 USC § 360e). This is because theclaims alleged by the plaintiffs under state law impose requirements with respect to the medicaldevice at issue here that are "different from, or in addition to [the federal] requirement," andbecause they relate to either the "safety or effectiveness" of the medical device under the MDA(21 USC § 360k [a] [1], [2]; Reigel v Medtronic, Inc., 552 US 312, 324-325[2008]; In re Medtronic, Inc. Sprint Fidelis Leads Prods. Liab. Litig., 592 F Supp 2d1147, 1158-1164 [2009]). Accordingly, the Supreme Court correctly granted those branches ofthe respondents' motion which were pursuant to CPLR 3211 (a) (2) to dismiss the causes ofaction alleging strict liability based on failure to warn and defective design, negligence,negligence per se, and breach of [*2]implied warranty insofar asasserted against them for lack of subject matter jurisdiction based upon federal preemption.
The plaintiffs' remaining contentions are without merit. Prudenti, P.J., Angiolillo, Balkin andChambers, JJ., concur. [Prior Case History: 23 Misc 3d 1122(A), 2009 NY Slip Op50888(U).]