                                                       PUBLISH


               IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT

                     _______________________

                           No. 97-5801               FILED
                     _______________________
                                             U.S. COURT OF APPEALS
                  D. C. Docket No. 97-6133-CIV ELEVENTH CIRCUIT
                                                    02/18/99
                                                THOMAS K. KAHN
                                                     CLERK

          LISA GOODLIN,

                                   Plaintiff-Appellant,

                          versus


          MEDTRONIC, INC.,

                                   Defendant-Appellee.




                    _________________________

          Appeal from the United States District Court
              for the Southern District of Florida
                    _________________________
                       (February 18, 1999)




Before TJOFLAT and EDMONDSON, Circuit Judges, and KRAVITCH,
Senior Circuit Judge.




KRAVITCH, Senior Circuit Judge:
      This appeal requires us to determine the preemptive effect of

the Medical Device Amendments (“MDA”), 21 U.S.C. § 360c et seq., to

the Federal Food, Drug and Cosmetic Act (“FDCA”), 21 U.S.C. § 301

et   seq.   Lisa   Goodlin     brought     suit   against   Medtronic,    Inc.

(“Medtronic”), alleging that her Medtronic cardiac pacemaker lead

was defective in a way that gave rise to two causes of action under

Florida common law.          Medtronic argues that because the United

States Food and Drug Administration (the “FDA”) approved the device

pursuant to the MDA's premarket approval process, section 360k(a)

of the MDA preempts Goodlin's state law claims. The district court

agreed and granted summary judgment to Medtronic.            We reverse.



                                 BACKGROUND

      In January 1991, Goodlin received a Medtronic pacemaker and

its related components, including Medtronic's 4004/M lead.                  The

pacemaker lead is a wire that transmits the heartbeat-steadying

electrical impulse from the pulse generator to the heart.               Goodlin

depends on the pacemaker to support her life.

      The FDA approved Medtronic's 4004/M lead for use in the United

States on February 10, 1989.       Sometime after Goodlin received her

pacemaker, however, an FDA inspection revealed a significant risk

that the 4004/M lead would fail due to degradation of the lead's

polyurethane insulating material.          The FDA, therefore, instructed

Medtronic   to   issue   a    Health   Safety     Alert   letter   to   inform


                                       2
physicians about the risk of defect in the lead.                    The letter

advised   physicians    to    consider      prophylactic   replacement     for

pacemaker dependent patients and advised them to replace the lead

if the risk of its continued use outweighed the risks associated

with its replacement.        Upon the advice of her physician, Goodlin

underwent open-heart surgery to replace the lead.             The lead that

the surgeons removed from Goodlin showed no signs of failure.

     Goodlin brought suit against Medtronic in 1997.            Her amended

complaint asserts claims for negligent design and strict product

liability, both of which arise under Florida common law. Medtronic

moved for summary judgment on the basis of federal preemption,

arguing   that   section     360k(a)   of   the   MDA   expressly    preempted

Goodlin's claims.      The district court found that because the FDA

had reviewed and approved the safety and effectiveness of the

4004/M device pursuant to its premarket approval process, the MDA

preempted Goodlin's claims.       The court, therefore, entered summary

judgment in Medtronic's favor.             We review the district court's

decision to grant summary judgment on the issue of preemption de

novo and apply the same standards that bound the district court.

See Lewis v. Brunswick Corp., 107 F.3d 1494, 1498 (11th Cir.),

cert. granted, __ U.S. __, 118 S. Ct. 439 (1997), cert. dismissed,

__ U.S. __, 118 S. Ct. 1739 (1998).



                                 DISCUSSION


                                       3
I.   Regulatory Overview

      Despite the historical prominence of the states in matters

concerning the health and safety of their citizens, the federal

government has expanded its role in this field over the past

century.     See Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.

Ct. 2240, 2245-56 (1996) (providing a survey of the federal

government's legislation in this area).               In the 1970s, against the

backdrop of several highly publicized events involving defective

medical devices, including the tragedies connected to the Dalkon

Shield intrauterine device, Congress turned its attention to the

regulation of medical devices.             Id. at 476, 116 S. Ct. at 2246.            In

1976, Congress passed the MDA, the statute at issue here, which

categorizes medical devices according to the risk they pose to the

public.      The   MDA    classifies       devices    that      either     “present    a

potential unreasonable risk of illness or injury” or that are

“purported    or   represented       to    be   for   a   use    in   supporting      or

sustaining    human      life   or   for    a   use   which     is    of   substantial

importance in preventing impairment of human health” as Class III

devices.     Id. at 477, 116 S. Ct. at 2246 (quoting 21 U.S.C. §

360c(a)(1)(C))(internal quotation omitted).                   Pacemakers, such as

the one at issue here, are Class III devices.                        See 21 C.F.R. §

870.3610(b).



      A.   The Premarket Approval Process


                                           4
       Before a manufacturer can introduce a new Class III medical

device into the marketplace, the manufacturer must provide the FDA

with a “reasonable assurance” that the device is both safe and

effective.       21 U.S.C. § 360c(a)(1)(C).       Manufacturers may furnish

this       assurance   through   the   FDA's   premarket   approval   process,

commonly referred to as the “PMA” process.1            As the Supreme Court

observed in Lohr, and as Medtronic has reminded us in its briefs,

the PMA process is rigorous because it permits the FDA to demand

the submission of detailed information regarding the safety and

effectiveness of the device under review.2                 See 21 U.S.C. §


       1
        The MDA permits manufacturers to avoid the PMA process by
obtaining approval for devices introduced to the market before
May 28, 1976, when the MDA took effect. See 21 U.S.C. §
360e(b)(1)(A); 21 C.F.R. § 814.1(c)(1). A manufacturer may also
seek approval of a new device by showing that the new device is
the “substantial equivalent” of such a grandfathered device. See
21 U.S.C. § 360e(b)(1)(B)(ii). The FDA's review for substantial
equivalence, dubbed the “510k process” in reference to its
section number in the original Act, is limited in scope. Instead
of the extensive inquiry into safety and effectiveness
contemplated in the PMA process, the FDA completes the average
510k review within 20 hours, and the agency considers only
whether the device is indeed the equivalent of a preexisting
device—regardless of how unsafe or ineffective the grandfathered
device happens to be. See generally Lohr, 518 U.S. at 478-80,
116 S. Ct. at 2247-48 (comparing these two processes). Not
surprisingly, the PMA process represents a much more significant
financial barrier to the market ($111,000 to $828,000 per device)
than the 510k process ($50 to $2,000 per device). See Lohr v.
Medtronic, Inc., 56 F.3d 1335, 1345 n.14 (11th Cir.
1995)(citation omitted), aff'd in part & rev'd in part, 518 U.S.
470, 116 S. Ct. 2240 (1996).
       2
        The FDA also regulates the testing of these devices by
requiring manufacturers to apply for an Investigational Device
Exemption (“IDE”). The application for an IDE is itself fairly
extensive, and the FDA will not approve an IDE if there is reason

                                         5
360e(c)(1) (describing the required contents of a PMA application).

The FDA then spends substantial time and resources reviewing these

applications; indeed, the average submission requires 1,200 hours

of review.      See Lohr, 518 U.S. at 477, 116 S. Ct. at 2246-47.

Ordinarily, the FDA refers the device to an independent panel of

experts, which prepares a report and recommendation on whether to

approve the device.      See 21 U.S.C. § 360e(c)(2).           The FDA may also

advise an applicant of deficiencies in the PMA application and

notify    the   applicant    of   any   measures     necessary     to    put   the

application in approvable form.             Id. § 360e(d)(2).     Once the FDA

determines      that   the   manufacturer      has   provided    the    required

reasonable assurances, the agency issues an order that permits the

manufacturer      to   market     the   device,      exactly     as     approved.

Thereafter, the manufacturer may not change the approved labeling,

product design, or manufacturing process in any way that would

affect the safety or effectiveness of the device.               See 21 C.F.R. §

814.80.      The FDA may withdraw its marketing approval if the

manufacturer makes any such changes without prior approval. See 21

U.S.C. § 360e(e)(1); 21 C.F.R. § 814.46(a)(2).3




to believe the device will be ineffective or present unreasonable
safety risks to patients. See 21 C.F.R. § 812.30(b)(4).
     3
        For a detailed description of the PMA process, see Worthy
v. Collagen Corp., 967 S.W.2d 360, 363-64 (Tex.), cert. denied,
__ U.S. __, 118 S.Ct. 2372 (1998).

                                        6
     B.     The PMA Process for the 4004/M Lead

     The PMA process preceding the FDA's approval of Medtronic's

4004/M pacemaker lead was an extensive one.                     In 1982, the FDA

approved Medtronic's application for an IDE to conduct clinical

tests on a predecessor lead, the Model 4003 lead; Medtronic

submitted the results of those trials to the FDA when it filed a

PMA application for the Model 4003.            During that process, the FDA

asked Medtronic to submit information that addressed the effect of

long-term degradation of the insulating materials on the Model 4003

lead.     In February 1984, Medtronic responded with studies and

reports     that    revealed    that    some     of     the    leads   experienced

environmental stress cracking failures but supported Medtronic's

view that Pellethane 80-A polyurethane, the Model 4003 lead's

insulating material, was biostable and suitable for long-term

implants.     The FDA requested still further tests involving the

performance of similar leads with identical insulation materials

and referred the Model 4003 application to an outside panel of

experts, which concluded that Medtronic had provided the requisite

reasonable    assurances       of   safety   and      effectiveness.      The   FDA

approved the Model 4003 PMA application on July 29, 1986.

     On July 15, 1988, Medtronic filed a PMA application for the

4004/M as a supplement to the Model 4003 PMA application.                        The

supplemental       PMA   application    relied     on    the    information     that

Medtronic already had submitted to the FDA and identified the


                                        7
lead's insulating material as Pellethane 80-A.            The supplemental

PMA application also described Medtronic's research and testing on

environmental stress cracking and metal-induced oxidation, both

known     as    potential   causes   of   defects   in   leads   that   used

polyurethane insulating material.         On February 10, 1989, the FDA

approved the supplemental application for the 4004/M with an order

that included a list of “Conditions of Approval.”            Medtronic now

seeks to use the FDA's approval to preempt Goodlin's claims

concerning the 4004/M lead.



II.   Preemption Under the MDA

      By virtue of the Constitution's Supremacy Clause,4 it long has

been settled that “state law that conflicts with federal law is

'without effect.'” Cipollone v. Liggett Group, Inc., 505 U.S. 504,

516, 112 S. Ct. 2608, 2617 (1992) (quoting Maryland v. Louisiana,

451 U.S. 725, 746, 101 S. Ct. 2114, 2128 (1981) and citing

M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 427 (1819)).                A

federal statute may preempt state law either expressly, by the

statute's language, or implicitly, by the statute's structure and

purpose.       Id., 112 S. Ct. at 2617.     In the absence of an express

command, federal law will preempt state law if that law actually

conflicts with federal law or if the federal law “so thoroughly

      4
        The Supremacy Clause provides that: “the Laws of the
United States . . . shall be the supreme Law of the Land.” U.S.
Const., art. VI, cl. 2.

                                      8
occupies a legislative field as to make reasonable the inference

that Congress left no room for the States to supplement it.” Id.,

112 S. Ct. at 2617 (internal quotations and citations omitted).5

     The MDA contains an express provision that governs the extent

to which the federal statute preempts state law:

     (a) General rule
          Except as provided in subsection (b) of this
     section,6 no State or political subdivision of a State
     may establish or continue in effect with respect to a
     device intended for human use any requirement—
          (1) which is different from, or in addition to, any
          requirement applicable under this chapter to the
          device, and
          (2) which relates to the safety or effectiveness of
          the device or to any other matter included in a
          requirement applicable to the device under this
          chapter.

21 U.S.C. § 360k(a).      The Supreme Court attempted to elucidate the

extent to which section 360k(a) preempts product liability suits

arising under state law in Medtronic, Inc. v. Lohr, 518 U.S. 470,

116 S. Ct. 2240 (1996), which involved a different allegedly

defective     Medtronic   pacemaker       lead.     Despite   the   striking

superficial     similarity    of   the     cases,   the   Supreme    Court's



     5
        This latter form falls under the general heading of
implied preemption. See generally Irving v. Mazda Motor Corp.,
136 F.3d 764 (11th Cir.), cert. denied, __ U.S. __, 119 S. Ct.
544 (1998) (describing and applying the different forms of
preemption). Although Medtronic has raised an implied preemption
argument, we find it to be without merit.
     6
        Subsection (b) provides a means for a state or political
subdivision thereof to apply for an exemption to preemption when
compelling local conditions require a more stringent requirement.
See 21 U.S.C. § 360k(b).

                                      9
disposition    of    Lohr   provides      little       more    than    a   rudimentary

analytical    framework     to    guide        our    resolution      of   Medtronic's

preemption claims in this case because Lohr involved the 510k

process   rather     than   the    PMA    process,       and   because      the     Court

fractured in an all but irreconcilable manner over the extent to

which section 360k(a) would ever preempt a general state common law

tort claim. See Mitchell v. Collagen Corp., 126 F.3d 902, 910 (7th

Cir. 1997), cert. denied, __ U.S. __, 118 S. Ct. 1300 (1998).7

     Nevertheless,      the      Lohr    Court       instructed    that     two     broad

“presumptions       about   the    nature        of    pre-emption”        inform     the

interpretation of section 360k(a).               Lohr, 518 U.S. at 485, 116 S.

Ct. at 2250.    First, the Court explained that deference to state

sovereignty, particularly in fields that the state governments


     7
        The Lohr Court split 4-4 over whether a jury's imposition
of liability in a product liability suit pursuant to state common
law tort duties would ever amount to a conflicting state
requirement subject to federal preemption. Justice Breyer
provided the fifth vote necessary to support the Court's holding
that none of the Lohrs' claims were preempted but asserted that
he agreed with Justice O'Connor's dissenting opinion on the
extent to which more appropriate FDA requirements might preempt
state law claims. See Lohr, 518 U.S. at 503, 116 S. Ct. at 2259
(Breyer, J., concurring). A number of courts have parsed these
opinions and the actual votes only to arrive at conflicting
positions. Compare Mitchell, 126 F.3d at 912 (noting that it
would have made little sense for Justice Breyer to write
separately if he agreed that most state tort claims were not
preempted) with Oja v. Howmedica, Inc., 111 F.3d 782, 789 (10th
Cir. 1997) (finding no preemption of a general state common law
tort claim by relying on Justice Breyer's vote to concur in the
judgment and ignoring the reasoning of his concurring opinion).
Fortunately, we need not enter that particular fray because we
can resolve this case on the basis of the federal requirement
alone.

                                          10
traditionally have occupied, requires an assumption that Congress

will not supersede “the historic police powers” of the states by

federal statute without making that purpose “clear and manifest.”

Id., 116 S. Ct. at 2250 (quoting Rice v. Santa Fe Elevator Corp.,

331 U.S. 218, 230, 67 S. Ct. 1146, 1152 (1947)).        Second, the Court

cautioned   that   “'[t]he   purpose    of   Congress   is   the   ultimate

touchstone' in every pre-emption case.”         Id., 116 S. Ct. at 2250

(quoting Retail Clerks Int'l Ass'n Local 1625 v. Schermerhorn, 375

U.S. 96, 103, 84 S. Ct. 219, 223 (1963)).          The MDA's preemption

provision and its surrounding statutory framework, therefore,

provide our primary guide for discerning Congressional intent

regarding the scope of preemption, but we must also examine the

“structure and purpose of the statute as a whole” by reviewing the

“way in which Congress intended the statute and its surrounding

regulatory scheme to affect business, consumers, and the law.” Id.

at 486, 116 S. Ct. at 2251 (internal quotation omitted).

     In considering whether the MDA accords a federal obligation

preemptive effect, the Lohr Court read section 360k(a) to demand

three things: (1) the imposition of a specific federal requirement

that (2) applied to a particular device and (3) focused on the

safety and effectiveness of the device.         The Court held that the

510k process did not satisfy the preemption provision, in large

part, because the FDA's review addressed substantial equivalence

rather than safety and effectiveness. Id. at 492-94, 116 S. Ct. at


                                   11
2254-55.   The PMA process at issue in the case before us addresses

safety and effectiveness; indeed, the entire purpose of the PMA

process is for the FDA to obtain a “reasonable assurance” that the

device is safe and effective.          See 21 U.S.C. § 360c(a)(1)(C).

Accordingly, we now turn to the question of whether the PMA process

satisfies section 360k(a)'s two other conditions by imposing any

specific federal requirement on a particular device.

     In addressing the federal requirement condition of section

360k(a)(1), the Lohr Court sought guidance from an FDA regulation

interpreting the preemption provision.       The Court noted that the

language of section 360k(a) was unclear and that Congress expressly

had given the FDA authority to assess the preemptive effect of its

own requirements on state laws.   Id. at 495-96, 116 S. Ct. at 2255-

56 (relying on 21 U.S.C. §§   371(a) & 360k(b)).    Although the Court

may have avoided the question of whether the FDA's regulations were

due any deference under Chevron, U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778 (1984), cf.

Lohr, 518 U.S. at 511-12, 116 S. Ct. at 2263 (O'Connor, J.,

concurring in part and dissenting in part), five Justices agreed

that the FDA's “view of the statute” was entitled to “substantial

weight.”   Id. at 496, 116 S. Ct. at 2256; see id. at 505-07, 116 S.

Ct. at 2260-61 (Breyer, J., concurring).         The FDA's regulation

interpreting section 360k, issued in 1978, advises that:

     State or local requirements are preempted only when the
     [FDA] has established specific counterpart regulations or

                                  12
      there are other specific requirements applicable to a
      particular device under the act, thereby making any
      existing divergent State or local requirements applicable
      to the device different from, or in addition to, the
      specific [FDA] requirements.

21 C.F.R. § 808.1(d).

      Considered together, section 360k(a)(1) grants preemptive

effect to any federal “requirement applicable under this chapter to

the device,” and the FDA regulation reads that language to include

only “specific counterpart regulations” or “specific requirements”

that apply to “a particular device.”                    21 C.F.R. § 808.1(d).

Accordingly, to prevail on its preemption argument in this case,

Medtronic must identify a specific federal requirement imposed on

its   particular    device   that    would      preempt       any    conflicting    or

additional     state   requirement       inherent       in    a    jury   verdict   in

Goodlin's favor.       Medtronic argues that the FDA's approval of its

4004/M lead, which required the FDA to find that Medtronic had

provided   a   reasonable    assurance        of    the      device's     safety    and

effectiveness, amounts to the imposition of such a requirement.

Medtronic also cites the FDA's letter of approval and the attached

“Conditions    of   Approval,”      as   well      as   the       FDA's   demand   that

Medtronic not alter the device in any way affecting the safety or

effectiveness of the 4004/M lead, as preempting requirements.8                       We


      8
      Medtronic also points out that in addition to compelling
manufacturers to submit to the PMA process, the MDA and the FDA's
regulations specifically require manufacturers to provide
substantial relevant information and disclosures. We would have
to consider the MDA's provisions calling for PMA review of the

                                         13
address each argument in turn.



      A.   PMA Approval

      In this court's own review of Lohr, before the Supreme Court

considered the case, we voiced substantial doubt that the FDA's

510k approval process, which permits a successful applicant to

market its device, imposed a specific requirement upon the device.

See Lohr v. Medtronic, Inc., 56 F.3d 1335 (11th Cir. 1995), aff'd

in part & rev'd in part, 518 U.S. 470, 116 S. Ct. 2240 (1996).        The

majority of our discussion in support of our decision to deny the

510k process preemptive effect addressed our primary concern that

the   process   confines   the   FDA's   consideration   to   substantial

equivalence rather than safety and effectiveness.        Id. at 1348-49.

Nevertheless, we also expressed reservations about whether any

finding pursuant to the 510k process would constitute a specific

federal requirement,9 and we made those misgivings part of our



type of medical device at issue in this case “specific
requirements,” although it is not obvious that these requirements
are device-specific, see infra Part II(B). These requirements
need not detain us, however, because the state of Florida has
passed no provisions that would conflict with the general PMA
requirement by permitting Medtronic to market the device in
Florida without receiving FDA approval. We presume that such
efforts necessarily would have no effect in view of § 360k(a).
      9
      We wrote, “[e]ven assuming that a safety and effectiveness
finding would constitute a specific design requirement under the
MDA, we are not convinced that 510(k) approval constitutes a
finding of safety and effectiveness.” Id. at 1348 (emphasis
added).

                                    14
decision by holding that the FDA's 510k approval, standing alone,

“does not impose specific requirements on a device for preemption

purposes.”   Id. at 1349.10

      Similarly, when the Supreme Court considered the preemptive

effect of a device's progress through the 510k process, the Court

focused its attention on the scope and focus of the 510k inquiry,

which are limited to substantial equivalence rather than safety and

effectiveness.   See Lohr, 518 U.S. at 492-94, 116 S. Ct. at 2254-

55.    The Court's opinion,11 however, also refers to the panel's

concern that the 510k process “imposes no 'requirement'” on the

design of the pacemaker and the panel's conclusion that “the

requirements with which the company had to comply [as a consequence

      10
        In another section of our Lohr opinion, in which we
rejected the plaintiff's assertion that § 360k and the FDA's
interpreting regulation contemplated a device-specific federal
requirement, we suggested that the PMA process was a much better
candidate for preemption than the 510k process because of its
heightened rigor. Id. at 1345-46 & nn.14 & 15. Given our
subsequent misgivings about converting the FDA's 510k approval
into a specific requirement, however, we cannot read this portion
of our opinion to suggest that the PMA process is itself
preemptive. Instead, the Lohr panel used the PMA process as an
example to support its view that the federal requirement in §
360k(a)(1) need not be device-specific. Based on this
understanding, the Lohr panel held that the MDA's good
manufacturing practices (“GMPs”), which apply generally to almost
all manufacturers of medical devices, were specific requirements
and thus entitled to preemptive effect. Id. at 1350. The
Supreme Court, however, held that § 360k(a)(1) does demand
device-specificity and reversed the panel on this point. See
Lohr, 518 U.S. at 500-01, 116 S. Ct. at 2257-58.
      11
        The relevant discussion appears in section V of the
plurality opinion, in which Justice Breyer concurred. Id. at
508, 116 S. Ct. at 2261-62 (Breyer, J., concurring).

                                15
of 510k review] were not sufficiently concrete to constitute a pre-

empting federal requirement.”            Id. at 492, 116 S. Ct. at 2254.

Moreover, the Court's analysis of the 510k process explains that

the FDA's finding of substantial equivalence “did not 'require'

Medtronics'    pacemaker    to    take      any   particular   form   for    any

particular reason.”        Id. at 493, 116 S. Ct. at 2254 (emphases

added).   Finally, the partial dissenters, who would have found

preemption    elsewhere    in    the   case   far   more   readily    than   the

majority, concurred in this part of the opinion and rejected

preemption as a consequence of surviving the 510k process for both

reasons: “Because the § 510(k) process seeks merely to establish

whether a pre-1976 device and a post-1976 device are equivalent,

and places no 'requirements' on a device, the Lohrs' defective

design claim is not pre-empted.”12           Id. at 513, 116 S. Ct. at 2264

(emphases added); cf. id. at 507, 116 S. Ct. at 2261 (Breyer, J.,

concurring) (“Insofar as there are any applicable FDA requirements



     12
        Of these two bases for deciding that the 510k process has
no preemptive effect, the latter finds far more support in the
language of § 360k(a). That section provides that no state may
establish a requirement that (1) is different from a federal
requirement and (2) relates to safety and effectiveness. Section
360k(a)(1) contemplates a federal requirement, which the FDA
reads to mean a specific requirement. See 21 C.F.R. § 808.1(d).
Section 360k(a)(2) demands that the requirement relate to safety
and effectiveness, but it is at least ambiguous whether §
360k(a)(2) modifies the state or federal requirement at issue.
The Supreme Court plainly read the provision to apply to the
federal requirement, but an argument could be made that the more
natural reading of the provision is as a limitation on the state
requirement.

                                       16
here, those requirements . . . are not 'specific' in any relevant

sense.”).      See also In re Orthopedic Bone Screw Prods. Liab.

Litig., 159 F.3d 817, 823 (3d Cir. 1998) (stating that the Lohr

Court gave the 510k process no preemptive effect because it imposed

no requirement).

     Accordingly, although the Lohr case had little to do with the

PMA process, which differs in significant ways from the 510k

process at issue there, at least eight, and probably all nine, of

the otherwise divided Justices expressed reservations as to whether

the FDA's 510k review process and approval, standing alone, imposed

any “requirement” on a device.      See Worthy v. Collagen Corp., 967

S.W.2d 360, 369-70 (Tex.), cert. denied, __ U.S. __, 118 S. Ct.

2372 (1998)(explaining that the Supreme Court's decision that the

510k process was “too general to have preemptive effect” was

unanimous).     As noted above, because the PMA process before us

focuses   on   safety   and   effectiveness,   we   must   examine   these

misgivings further to determine whether the FDA's PMA process,

which produces a finding that the manufacturer has provided the

reasonable assurances of safety and effectiveness necessary to

market the device, translates into the necessary imposition of a

“specific requirement.”

     Our initial concern with this question is a conceptual one.

Absent a more specific statutory definition, we must accord the

language at issue its ordinary meaning.        See, e.g., Park 'N Fly,


                                    17
Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194, 105 S. Ct.

658,    661   (1985)(“Statutory   construction       must    begin   with   the

language employed by Congress and the assumption that the ordinary

meaning of that language accurately expresses the legislative

purpose.”).     We also may consider Congress's use of a particular

term elsewhere in the statute to determine its proper meaning

within the context of the statutory scheme.           See, e.g., Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 112 S. Ct. 2589,

2596 (1992). In ordinary usage, a requirement refers to “something

that is wanted or needed” or “something called for or demanded: a

requisite or essential condition.”             Webster's Third New Int'l

Dictionary      1929 (1986) (emphases added).              Similarly, within

section 360k, Congress referred to a requirement as something a

state or political subdivision could “establish,” which appears to

contemplate the state's creation of and, thus, identification of

some thing.     21 U.S.C. § 360k(a).       Finally, the FDA's interpretive

regulation, which describes the federal requirement as “specific

counterpart     regulations”   that    the    FDA   “has    established,”   or

“specific requirements” that apply to the device under the MDA, 21

C.F.R. § 808.1(d), also indicates that a section 360k(a) preempting

federal requirement must be some ascertainable condition.13                 The


       13
        The FDA's interpretive regulation also speaks of the
conflicting state regulation in terms that contemplate an
ascertainable condition that the state must establish in one
manner or another. See 21 C.F.R. § 808.1(b) (explaining that
federal law preempts requirements “having the force and effect of

                                      18
ordinary construction of the language of section 360k, as well as

the use of the term “requirement” in the broader statutory context

and its interpretation in the FDA's regulation, therefore, all

contemplate the imposition of some identifiable precondition that

applies to the device in question.    Indeed, the statute, the FDA's

regulation, and the Supreme Court's analysis in Lohr instruct us to

conduct a “careful comparison” between the state and federal

requirements at issue.   Lohr, 518 U.S. at 500, 116 S. Ct. at 2257-

58.   Such a comparison is impossible if we cannot identify or

ascertain the precise federal requirement at issue. Our conceptual

difficulty with Medtronic's argument stems from our inability to

ascertain any such identifiable requirement from the FDA's approval

of Medtronic's 4004/M lead.

      Medtronic points out that even a cursory review of the

statutory framework reveals that the MDA imposes a legion of

readily identifiable requirements upon the PMA applicant. See

generally supra Part I(A); Worthy, 967 S.W.2d at 363-64 (providing

an overview).   Despite the specificity and considerable rigor of

these conditions, see supra note 8, however, neither the FDA's

actual review of a device and its supporting information nor the

agency's eventual approval of the device imposes any ascertainable


law (whether established by statute, ordinance, regulation or
court decision).”). Furthermore, the FDA's description of state
requirements in the remainder of the interpretive regulation
refers only to concrete and identifiable rules and regulations.
Id. at § 808.1(d)(1-10).

                                 19
requirement upon the device.      In the typical PMA review and

approval and, more particularly, in the context of the 4004/M PMA,

the FDA issues no regulation, order, or any other statement of its

substantive benchmark. Cf. Papike v. Tambrands Inc., 107 F.3d 737,

740-41 (9th Cir.), cert. denied, __ U.S. __, 118 S. Ct. 166 (1997)

(finding preemption based on an ascertainable requirement in an

express FDA regulation requiring specific warnings on a device's

packaging); Lohr, 518 U.S. at 489 n.9, 116 S. Ct. at 2252 n.9

(plurality opinion) (“In the MDA, no . . . specifics exist until

the FDA provides them.”).   The approval represents only a finding

that the manufacturer's proposal to market a device has reasonably

assured the FDA of the device's safety and effectiveness. Nor does

the FDA's willingness to notify an applicant of deficiencies and to

propose modifications to the PMA application add any further force

to Medtronic's argument for preemption, because an applicant who

corrects or modifies a deficient PMA application before receiving

the FDA's approval stands in no better position than an applicant

whose initial PMA application was flawless.14   In either case, the


     14
        In this vein, Medtronic argues that the FDA imposed a
number of specific requirements on the 4004/M during the process
of reviewing the PMA application. Our review of the record,
however, reveals that these requirements amounted to nothing more
than requests for further information and explanations of data
already before the FDA. These requests for information may shed
light upon the issues the FDA examined but do not impose any
specific requirement upon the device. We also note that the Lohr
Court did not consider the FDA's power to make similar requests
for additional information during the 510k review, see 21 C.F.R.
§ 807.87(l), as a factor that would support according that

                                20
FDA enters a finding that the applicant has furnished the relevant

assurances and therefore may begin to market its device.                 In

neither case, however, does the approval provide any indication of

what (if any) specific substantive requirements the FDA may have

applied to reach that result.15 Compare Hurley v. Lederle Lab. Div.

of   Am.   Cyanamid   Co.,   863   F.2d   1173,   1177   (5th   Cir.   1988)

(explaining that the FDA's approval of a certain form of vaccine

provides “no basis for finding a federal interest in” that form)

with Lohr, 518 U.S. at 500, 116 S. Ct. at 2257 (“[P]re-emption

[must] occur only where a particular state requirement threatens to


process preemptive effect.
      15
        In 1997, the FDA promulgated a proposed rule on the
preemption of state product liability claims under the MDA. See
62 Fed. Reg. 65,384 (1997). In that proposed rule, the FDA's
analysis of its general approval processes (the 510k, the IDE,
and the PMA) echoed our concern regarding the imposition of an
ascertainable “specific requirement” as contemplated in §
360k(a)(1). Id. at 65,387. As a result of irregularities in the
timing and circumstances of the FDA's action and in response to
Congressional criticism of those circumstances, however, the FDA
withdrew the proposed rule in July 1998. See 63 Fed. Reg. 39,789
(1998). Accordingly, we have given the FDA's expression of its
views in this proposed rule no authoritative weight or deference.
Nor do we defer to any position the FDA may have taken as an
amicus curiae in cases involving issues of preemption. See McKee
v. Sullivan, 903 F.2d 1436, 1439 n.3 (11th Cir. 1990)
(“[E]vidence of a litigating position is insufficient to
establish an agency's interpretation.”).
     Nevertheless, we find the analysis of the PMA process
presented in the FDA's proposed rule interesting for two reasons.
First, we are convinced that the proposed rule's analysis is
faithful to the language of § 360k(a)(1), the broader statutory
framework, and Congress's purpose in passing the MDA. Second, we
find it unsettling that the agency charged with conducting PMA
review has doubts regarding whether an approval pursuant to that
process should preclude subsequent state tort liability.

                                     21
interfere with a specific federal interest.”) (emphasis added).

        Medtronic       seeks   to   convert    the     FDA's         finding    and   the

accompanying permission to market its device into the federal

government's implied validation of the safety of its device and

every step of its manufacture and, then, to use that validation as

a shield against liability in tort.             The FDA's approval is clearly

specific to the device under review, but because the approval

itself neither reveals nor imposes any ascertainable substantive

prerequisite for approval that we could compare to a purportedly

conflicting state requirement, the approval itself does not fit

within        section    360k(a)(1)'s      demand     for        a    specific   federal

requirement.          As the New York Appellate Division persuasively

explained, “while a PMA review is considerably more rigorous and

detailed than the premarket notification [510k] process at issue in

[Lohr        v.]   Medtronic,   it   is,   in   fact,       no       more   'specific'   a

requirement.”         Sowell v. Bausch & Lomb, Inc., 646 N.Y.S.2d 16, 20

(N.Y. App. Div. 1997).16


        16
        Medtronic argues that our adoption of Slater v. Optical
Radiation Corp., 961 F.2d 1330 (7th Cir. 1992) in Duncan v. Iolab
Corp., 12 F.3d 194, 195 (11th Cir. 1994) precludes our analysis
and conclusions here. Slater, however, involved the preemptive
effect of the IDE process, not the PMA process, and therefore
does not control our disposition of this case. Moreover, Slater
explicitly relied on the experimental nature of the device
undergoing IDE review. See Slater, 961 F.2d at 1333.
     Nevertheless, we acknowledge that part of the reasoning in
Slater is at odds with our analysis today because the Slater
court implied a specific federal requirement from the FDA's
determination that the device was sufficiently safe and effective
to permit experimental use. Id. Given our analysis, in section

                                           22
        B.    The FDA's Conditions of Approval

        Medtronic also points to the “Conditions of Approval” that

accompanied the FDA's approval of the PMA application for the

4004/M lead, as well as the agency's demand that Medtronic make no

changes to the device without first seeking FDA approval, as

possible sources for a preempting federal requirement. Although we

agree        that   these   conditions         constitute    specific      federal

requirements,       as   discussed   in    part    II(A)    above,    we   are   not

convinced that these requirements satisfy section 360k(a)(1)'s

further admonition that a preempting requirement be “applicable

under this chapter to the device.”              21 U.S.C. § 360k(a)(1).

        The MDA permits the FDA to impose similar conditions on

devices it approves pursuant to the 510k process.                    See, e.g., 21

U.S.C. § 360j(e) (giving the FDA the authority to impose conditions

on the sale of any device); cf. id. § 396 (referring to the FDA's



II(A), of the manner in which the Supreme Court addressed section
360k(a)(1)'s demand for a specific federal requirement in its
intervening Lohr decision, however, we do not believe that
Slater's reasoning on this point has survived. See Niehoff v.
Surgidev Corp., 950 S.W.2d 816, 819-20 (Ky. 1997), cert. denied,
__ U.S. __, 118 S. Ct. 1187 (1998) (rejecting Slater in light of
the Supreme Court's demand for a specific federal requirement).
On this point, we part company with the Seventh Circuit, which
continues to apply the relevant portion of Slater despite Lohr.
See Mitchell v. Collagen Corp., 126 F.3d 902, 911 (7th Cir. 1997)
(applying Slater's approach without citing the case); Chambers v.
Osteonics Corp., 109 F.3d 1243, 1246-47 (7th Cir. 1997)(relying
on the case explicitly). In any event, to the extent Slater is
at odds with our decision today, we believe the Supreme Court's
reasoning in Lohr calls that case, and thus our adoption of it in
Duncan, into question.

                                          23
existing     authority      to   enforce        restrictions    on     the   sale   or

distribution “of a device that are part of a determination of

substantial equivalence, established as a condition of approval, or

promulgated through regulations”).               Moreover, the Supreme Court in

Lohr took note of these conditions and the FDA's “continuing

authority to exclude the device from the market if its design is

changed” and recited Medtronic's arguments in favor of construing

these factors as preemptive requirements.                Lohr, 518 U.S. at 492,

116 S. Ct. at 2254; see also 21 C.F.R. § 807.81(a)(3) (requiring

premarket notification for the reintroduction into commercial

distribution of any device that is about to be significantly

changed    or    modified).       Nevertheless,         the    Court    found   these

arguments insufficient to fit the 510k approval process within the

confines of section 360k(a)(1) and declined to grant the 510k

process preemptive effect.           See Part II(A), supra.

      More      significantly,       the    Lohr     Court     construed      section

360k(a)(1)'s description of a federal requirement “applicable under

this chapter to the device” as an instruction to limit preemption

to   device-specific      requirements.            To   interpret      the   relevant

language,    the    Court    again    relied       on   the    FDA's    interpreting

regulation, which reads section 360k(a)(1) to demand a specific

federal requirement “applicable to a particular device.” 21 C.F.R.

§ 808.1(d) (emphasis added), quoted in Lohr, 518 U.S. at 498, 116

S. Ct. at 2257.          The Court then noted the FDA's “overarching


                                           24
concern”     regarding   a   broader      construction   of   preemption    and

determined that the FDA's general labeling requirements and its

Good Manufacturing Practices (“GMPs”) were too general to merit

preemptive effect under the statute and regulation.              See Lohr, 518

U.S. at 497-501, 116 S. Ct. at 2256-58. A similar concern animates

the Court's discussion of the general nature of the conditions the

FDA imposed in its letter notifying Medtronic of its approval of

the device pursuant to the 510k process.          Id. at 493, 116 S. Ct. at

2254 (“That letter only required Medtronic to comply with 'general

standards'—the    lowest     level   of     protection   'applicable   to   all

medical devices' . . . .”).

     Analogously, the restrictions Medtronic proffers in this case

are entirely general in nature, and the FDA has not promulgated

them with respect to the “particular device” before us, the 4004/M,

or even with respect to the class of specific devices at issue,

pacemaker leads.     The “Conditions of Approval” document enclosed

with the letter that noted the FDA's approval of the 4004/M PMA

application sets forth rules and regulations generally applicable

to all devices approved through the PMA process.              For example, the

“Conditions of Approval” remind Medtronic of its obligation to

provide post-approval reports, to refrain from changing the device

without FDA approval, and to report adverse reactions and device

defects.17    The document, dated almost two years before Medtronic


     17
          See R1-24, Ex. E-3.

                                       25
submitted its supplemental PMA application, is cast in the most

generic of terms and mentions neither the 4004/M nor even pacemaker

leads as a class of devices.18    As the Supreme Court explained:

     [T]he federal requirements reflect important but entirely
     generic concerns about device regulation generally, not
     the sort of concerns regarding a specific device or field
     of device regulation which the statute or regulations
     were designed to protect from potentially contradictory
     state requirements.

Lohr, 518 U.S. at 501, 116 S. Ct. at 2258.    We do not believe that

requirements applicable to all devices that receive the FDA's

approval via the PMA process satisfy the Court's demand for a

specific requirement that applies to a particular device.        See

Kennedy v. Collagen Corp., 67 F.3d 1453, 1458-59 (9th Cir. 1995)

(pre-Lohr case expressing doubt that Class III devices collectively

constitute a “particular device” within the meaning of section

360k(a)(1) and the FDA's interpreting regulation), overruled in

part on other grounds by Lohr, 518 U.S. 470, 116 S. Ct. 2240.



     C.     The “Ultimate Touchstone” of Congressional Intent

     We recognize that our conclusions on these questions, although

not without precedent,19 are at odds with the results reached in a


     18
          Id. at 1, 3.
     19
        See Kennedy, 67 F.3d at 1458-59 (pre-Lohr case finding
that the PMA process imposes no specific federal requirement),
overruled in part on other grounds by Lohr, 518 U.S. 470, 116 S.
Ct. 2240; Lakie v. SmithKline Beecham, 965 F. Supp. 49, 54
(D.D.C. 1997) (“The fact that the PMA process requires certain
information and mandates certain procedures from manufacturers

                                  26
number of cases both before and after the Supreme Court's decision

in Lohr.   See Mitchell v. Collagen Corp., 126 F.3d 902, 911 & n.2

(7th Cir. 1997) (finding that PMA approval constitutes a specific

federal regulation and examining cases both in support and to the

contrary); Worthy, 967 S.W.2d at 372-74 (surveying cases before and

after Lohr). Nevertheless, we remain convinced that our conceptual

difficulty with Medtronic's attempts to divine a specific federal

requirement from the FDA's approval of its PMA application reflects

the real difference between the questions at stake during the PMA

process and the discrete issues presented in a product liability

suit.20    The   PMA   process   permits   the   FDA   to   regulate   the


does not transform the PMA process itself into a specific federal
requirement which triggers preemption and protects a manufacturer
from suit.”); accord Sowell, 656 N.Y.S.2d at 20; Walker v.
Johnson & Johnson Vision Prods., Inc., 552 N.W.2d 679 (Mich. App.
1996).
     20
        We recognize that our decision may have implications
beyond the preemption of state tort suits. Our analysis of the
PMA review process and our decision that the FDA's approval
imposes no preemptive requirement might preclude the express
preemption of any conflicting state requirement, no matter how
the state asserts it. Although we find it difficult to conceive
of any such hypothetical state requirement that actually would
conflict with the FDA's approval rather than the federal laws
preventing the sale of unapproved devices, see supra note 8, we
note the Supreme Court's recent teaching that the presence of an
express preemption provision in a federal statute does not
preclude field or conflict preemption. See Freightliner Corp. v.
Myrick, 514 U.S. 280, 115 S. Ct. 1483 (1995), cited in Lohr, 518
U.S. at 503, 116 S. Ct. at 2259 (plurality opinion). To the
extent, therefore, that a state's law “'stands as an obstacle to
the accomplishment and execution of the full purposes and
objectives of Congress'” as embodied in the PMA approval process,
the state's efforts still may fall to preemption. Freightliner
Corp., 514 U.S. at 287, 115 S. Ct. at 1487 (quoting Hines v.

                                   27
introduction and sale of medical devices to assure their minimal

safety for public consumption—it does not appear to address the

appropriate standards of liability once the product enters the

marketplace.       Our inability to discern a specific requirement that

fits the demands of section 360k(a) in the FDA's approval process,

therefore, finds broader support in the language and structure of

the MDA and is consistent with the factual backdrop that prompted

Congress to enact the MDA.

       Neither the MDA itself nor the FDA's interpretive regulations

directly addresses the question of liability arising in connection

with defective medical devices.          Instead, the preamble to the MDA

states that the amendments are for the purpose of “provid[ing] for

the safety and effectiveness of medical devices intended for human

use.”    Pub. L. No. 94-295, 90 Stat. 539, 539 (1976) (preamble).

Similarly, the legislative history of the MDA fails to address

issues of liability for defective devices.             See Lohr, 518 U.S. at

491,    116   S.   Ct.   at   2253   (plurality    opinion).    Instead,   the

legislative history recounts the difficulty the FDA experienced in

its earlier attempts to keep dangerous medical devices out of the

marketplace.       See S. Rep. No. 94-33 at 2-7 (1976), reprinted in

1976 U.S.C.C.A.N. 1070, 1071-76.             This attention to the regulation

of medical devices before they reach the marketplace is consistent

with the events that prompted Congress to consider the MDA. As the


Davidowitz, 312 U.S. 52, 67, 61 S. Ct. 399, 404 (1941)).

                                        28
Supreme Court observed in Lohr, several highly publicized incidents

involving defective medical devices, particularly the Dalkon Shield

intrauterine device, gave rise to Congress's legislation in this

area.    See Lohr, 518 U.S. at 475-77, 116 S. Ct. at 2246.            It would

have been inconsistent for the same Congress that enacted these

sweeping    reforms,     intending   to    make   a   potentially    dangerous

industry safer for patients by blocking the admission of defective

devices to the market, then to preempt product liability suits when

those devices caused injury.          Moreover, we find no support for

Medtronic's assertions that a concern for preserving innovation

prompted Congress even to consider, let alone enact, preemption of

tort liability in all cases involving devices that survived the PMA

process.     Id. at 490-91, 116 S. Ct. at 2253 (plurality opinion).

Instead it appears that the members of Congress who sought to

foster continued innovation in the field focused their efforts on

reducing the regulatory burden that manufacturers would have to

bear before they could market their products.            Id.; 116 S. Ct. at

2253 (plurality opinion). Again, these efforts are consistent with

our observation that Congress intended to regulate medical devices

before     they    reached   consumers,     rather     than     address    their

consequences once on the market.

        Other provisions of the statutory scheme also indicate that

Congress expected some state tort liability to survive the MDA.

For     example,   the    statute    contains     a   savings     clause    that


                                      29
specifically   addresses   the   MDA's   effect   on    other   liabilities

arising from defective medical devices: “Compliance with an order

issued under this section shall not relieve any person from

liability under Federal or State law.”       21 U.S.C. § 360h(d).        The

effect of this savings clause is somewhat ambiguous because it

appears in a section that addresses the FDA's powers to provide

notification and other remedies when the agency discovers that a

medical   device   (presumably   including    one      that   received   PMA

approval) presents an “unreasonable risk of substantial harm to the

public health.”    Id. § 360h(a).    As a matter of careful statutory

construction, therefore, we would have to read section 360h(d) to

refer only to compliance with FDA orders regarding notification,

repair, replacement, refund, or reimbursement—and not to include

compliance with the PMA process, which arises under a different

section of the MDA. This limitation on section 360h(d)'s technical

application, however, need not compel us to ignore the provision's

broader implications because product liability in tort is the most

immediately obvious source of state law liability that ordinarily

would arise in a situation implicating the FDA's section 360h

authority.     Moreover, although the Lohr panel refused to read

section 360h(d) as a vehicle to reject all preemption under the MDA

because that section does not speak to the type of state liability

contemplated and because a general savings clause cannot supersede

a more specific preemption provision, see Lohr, 56 F.3d at 1342-43,


                                    30
rev'd in part and aff'd in part, 518 U.S. 470, 116 S. Ct. 2240, the

Supreme Court never addressed the impact of section 360h(d) on its

preemption analysis.           Despite these lingering concerns, we would

misread neither the plain language of section 360h(d) nor the Lohr

panel's interpretation of the law by concluding that the savings

clause casts real doubt on the idea that Congress intended to

preempt state tort liability for all PMA approved devices.                            Cf.

Irving v. Mazda Motor Corp., 136 F.3d 764, 767-68 (11th Cir. 1998)

(holding      that   a   federal      regulatory        statute      that    includes   a

preemption     clause    and     a    savings     clause       is    ambiguous   on   the

preemption of state common law claims).

      Finally, and as the Lohr plurality observed, the MDA provides

no federal means by which injured plaintiffs can pursue legal

remedies against the manufacturers of defective medical devices.

See   Lohr,    518   U.S.   at       487,   116    S.    Ct.    at    2251   (plurality

opinion)(“[T]here is no explicit private cause of action against

manufacturers contained in the MDA, and no suggestion that the Act

created an implied private right of action . . . .”).                        Reading the

PMA process to impose specific federal requirements that enjoy

preemptive effect under section 360k, therefore, would deprive all

persons suffering injury as a result of a defective device—the very

class of persons that Congress intended to protect by enacting the

MDA—of “most, if not all relief.”                 Id. at 487, 116 S. Ct. at 2251

(plurality opinion).           The Supreme Court considered an analogous


                                            31
situation in Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 104 S. Ct.

615 (1984).     In that case, Congress had enacted the Atomic Energy

Act (the “AEA”) “to prohibit the States from regulating the safety

aspects of nuclear development,” on the premise that the federal

government's commission was more qualified to define the safety

standards that should control the industry. Id. at 250, 104 S. Ct.

at 622. To support its conclusion that the statute did not preempt

state tort remedies and punitive damage awards against the nuclear

power industry, the Court observed that Congress had provided no

indication that it even had considered preempting state tort law

liability.      Id. at 251, 104 S. Ct. at 623.         Moreover, the Court

refused to attribute any intent to preempt state tort claims after

observing that preemption would leave the public—the target of

Congress's safety concerns—without a remedy, because Congress had

not   enacted    a   federal   private    cause   of   action   for   injured

plaintiffs:      “It is difficult to believe that Congress would,

without comment, remove all means of judicial recourse for those

injured by illegal conduct.”        Id., 104 S. Ct. at 623, quoted in

Lohr, 518 U.S. at 487, 116 S. Ct. at 2251 (plurality opinion).            We

too are reluctant to conclude that Congress sought to remove all

remedies available to the very class of persons that it sought to

protect when it enacted the MDA.

      In its attempts to discern Congress's intentions regarding the

preemption of tort liability, the Silkwood Court also looked to


                                     32
Congress's subsequent legislation in the field. The Court observed

that Congress had passed the Price-Anderson Act to provide a

federal indemnification regime to encourage private companies to

enter the nuclear power industry despite the risk of significant

state tort liability.     See Silkwood, 464 U.S. at 251, 104 S. Ct. at

623. Although the indemnification provisions had no application to

the case at hand, the Court explained that their very existence

demonstrated that Congress never intended to preempt state tort

remedies when it passed the AEA.       Id. at 251-56, 104 S. Ct. at 623-

25.   We find similar evidence of Congress's intent with regard to

the MDA in its 1994 attempt, albeit failed, to enact the Product

Liability Fairness Act (“PLFA”). The proposed act, which sought to

create     federal   standards   of   product   liability,21   would   have

prevented private litigants from recovering punitive damages from

the manufacturers of medical devices in cases where the “drug or

device” that caused a plaintiff's harm “was subject to pre-market

approval by the [FDA] with respect to the safety of the formulation

or performance of the aspect of such drug or device which caused

the claimant's harm . . . .”          S. 687, 103d Cong. § 203 (1994).


      21
       The PLFA would not have created a new federal cause of
action but rather would have imposed uniform standards of
liability for product manufacturers and sellers. See S. 687,
103d Cong. § 202. The proposed law would have permitted
plaintiffs to bring causes of action pursuant to applicable state
law, to the extent not in conflict with the PFLA's provisions.
Id. § 201. Similarly, a plaintiff could also pursue punitive
damages under “applicable law” to the extent not in conflict with
the PFLA. Id. § 203.

                                      33
Although the bill never became law, section 203's attempt to

prevent plaintiffs suing the manufacturers of PMA devices under

state tort law (to the extent not inconsistent with the proposed

federal standard) from recovering punitive damages is significant

because, if the 1976 Congress truly had intended section 360k(a) of

the MDA to preempt all or most state law claims involving PMA

approved devices, then there would have been no need for the 1994

Congress to include those devices in its proposed solution to the

more general travails of product liability law.

     These factors indicate beyond any doubt that, at least with

respect to the FDA's PMA authority, Congress was deeply concerned

with assuring the minimal safety of medical devices that enter the

marketplace but gave no appreciable thought to the effect such

regulation should have on any liability that might result from the

sale and use of such medical devices.   As a result, the PMA process

is proactive rather than reactive; it concerns the manufacturers'

ability to market minimally safe devices but makes no attempt to

announce substantive safety standards that might determine the

outcome of a product liability suit.    See S. Rep. No. 94-33 at 2

(1976), reprinted in 1976 U.S.C.C.A.N. 1070, 1071 (“Medical device

legislation is intended to assure that medical devices . . . meet

the requirements of safety and effectiveness before they are put in

widespread use throughout the United States.”)(emphasis added).

This view of the statutory scheme and the purposes behind the MDA


                                34
is in harmony with our reading of section 360k(a)(1)'s limitation

on the type of specific federal requirements to which Congress

intended     to   grant   preemptive      effect   and   with    our   conceptual

objection to conjuring such specific federal requirements from the

FDA's approval of particular devices.

       Nevertheless, we can conceive of a situation in which Congress

may have intended to establish an exemption from state tort

liability as a trade-off for imposing the PMA system upon new

medical devices. Congress would have been aware of such litigation

given the backdrop of high profile cases involving defective

medical devices, and that experience could have led Congress to

substitute regulation for litigation by preempting all claims

involving devices that received PMA approval.                   Indeed, Congress

recently attempted an ambitious, but more limited, attempt to make

such    a   trade-off     by   enacting    the   proposed   Universal    Tobacco

Settlement Act and thereby bring a negotiated resolution to years

of tobacco litigation.          See S. 1415, 105th Cong. (May 14, 1998).

Congress's controversial and ultimately unsuccessful experience

with this particular attempt to provide even limited immunity from

suits arising under state product liability laws, however, only

bolsters our conviction that the 1976 Congress contemplated no such

consequences under the MDA.22             It is difficult to believe that


       22
       We note that the 1998 Congress that considered granting a
number of domestic tobacco companies immunity against state-
initiated litigation and class actions (but not private,

                                          35
Congress   struck   a    similar   bargain—regulation      in    exchange     for

immunity from state tort suits—in the area of medical devices

without    mentioning     its   aspirations    in    the   statute     or    its

legislative    history    and   with    nary   a    comment     in   the    FDA's

interpretive regulations or in the contemporary reviews of industry

observers.    See Lohr, 518 U.S. at 490-91 & n.13, 116 S. Ct. at 2253

& n.13 (plurality opinion).

     Finally, we are loath to infer a tacit trade-off between

regulation and liability when it appears that even the regulated

industry was unaware of the purported bargain until relatively late

in the day. Our research reveals that the first reported decisions

on the industry's attempts to assert federal preemption of state

product liability claims for devices subject to the FDA's approval

regimes did not appear until 1991, fifteen years after Congress

passed the MDA.     See Slater v. Optical Radiation Corp., 756 F.

Supp. 370 (N.D. Ill. 1991), aff'd, 961 F.2d 1330, 1331 (7th Cir.

1992) (recognizing that the preemptive effect of an FDA issued IDE



individual lawsuits) did so directly and unambiguously. See S.
1415, 105th Cong. §§ 701-703. We further observe that Congress
rigorously defined this immunity in the proposed statute, id.,
even though it also planned to subject new tobacco products to
FDA regulation and review through a process akin to the MDA's PMA
process, id. §§ 901-910. Finally, we observe that the debate
over granting even this limited immunity to tobacco
manufacturers, and the price Congress properly should have
demanded for it, were matters of extreme and extended
controversy. Moreover, the FDA's concurrent attempts to regulate
nicotine as a drug prompted a blizzard of commentary from the
legal academy and industry observers.

                                       36
presented a matter of first impression at the appellate level). We

recognize that the costs and delays associated with the PMA process

have led the industry to avoid it when possible. See Lohr, 518 U.S.

at 479, 116 S. Ct at 2248 (noting that in 1990 eighty percent of

new medical devices had entered the market without undergoing PMA

review).    Even so, it seems unlikely that the industry would have

ignored its immunity under the MDA for so long after the statute's

enactment if Congress, in fact, had intended to provide immunity in

1976.

        Just beneath the surface of Medtronic's arguments in support

of preemption lies a relatively appealing policy argument in favor

of immunity for devices that receive the FDA's most extensive

review and approval.     It seems presumptuous, to say the least, to

permit a jury composed of ordinary citizens, none of whom we can

expect to have significant medical training, to second-guess a

decision, already extensively and rigorously considered by some of

the most qualified minds in the relevant medical and scientific

fields, regarding the rather complicated question of the safety of

a particular medical device.            As Medtronic described the PMA

process for the 4004/M lead, a number of government and independent

experts, as well as Medtronic's own scientists, examined, over

several years, the performance of the Pellethane 80-A polyurethane

insulating material at issue in Goodlin's complaint and came to the

conclusion    that   Medtronic   had    reasonably   assured   its   safety.


                                       37
Goodlin's complaint, however, demands that a jury—a much less

scientifically qualified body—decide whether the 4004/M lead was

unreasonably   dangerous   because    it   used    the   Pellethane   80-A

insulating material and, if so, to award damages.

     No matter how compelling we might find Medtronic's policy

objections as citizens, as judges, bound to apply the law rather

than create it, we may not act on those objections here.         The jury

system, although imperfect, is the method by which we resolve an

ever-increasing number of disputes, many of which might more

appropriately be resolved by experts.             We cannot accept that

Congress intended to exempt the manufacturers of medical devices

from tort liability for all devices subject to the PMA process on

the scant evidence presented here.         We also read the Supreme

Court's most recent admonition that “[t]he purpose of Congress is

the ultimate touchstone in every pre-emption case,” Lohr, 518 U.S.

at 485, 116 S. Ct. at 2250 (internal quotation omitted), and the

Court's instruction that deference to state sovereignty requires us

to assume that Congress does not preempt the states' “historic

police powers” without making its purpose “clear and manifest,”

id., 116 S. Ct. at 2250 (internal quotation and citations omitted),

as unmistakable directions that lead us to today's decision.

Accordingly, we may not bend the language of section 360k(a)(1) to

permit the manufacturers of medical devices to infer from the FDA's

approval of a PMA application specific federal requirements that


                                 38
remain unstated and unascertainable until an injured consumer

brings a lawsuit alleging a defect.

     Our decision does not mean that Medtronic's efforts to provide

the FDA with reasonable assurances regarding the 4004/M lead's

safety and effectiveness have no bearing on the question of its

liability on Goodlin's claims.        To the contrary, to prevail at

trial, Goodlin must show either that Medtronic designed the lead

negligently or that the lead was inherently dangerous because the

risks it imposed outweighed its benefits.23    Medtronic's efforts to

improve its product and the information it collected in support of

its safety will be relevant to these questions. The FDA's approval

of the device, particularly after an independent panel of experts

recommended that approval, should impress the jury that must

evaluate the reasonableness of Medtronic's actions at the time it

manufactured and marketed the 4004/M lead.      Although the task of

presenting this information in a manner that a jury can understand

may make for a lengthy and complicated trial—and may even demand a

better solution—section 360k(a) of the MDA provides no means to

avoid it.

                            CONCLUSION

     We conclude that the FDA's approval of a medical device



     23
        Goodlin also will have to prove that Medtronic's
negligence or the device's inherent danger caused her harm. As
the district court observed, but did not decide, Goodlin's case
faces some serious causation problems under Florida law.

                                 39
pursuant to the PMA process, standing alone, imposes no specific

federal   requirement   applicable    to   a   particular   device   and,

therefore, has no preemptive effect under section 360k(a) of the

MDA. Accordingly, we REVERSE the district court's entry of summary

judgment in Medtronic's favor and REMAND the case for further

proceedings consistent with this opinion.




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