                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0680-18T4

ARCELIA SANDOBAL GOMEZ,
a/k/a ARCELIA SANDOBAL
and ARCELIA SANDOVAL,

          Plaintiff-Appellant,

v.

BAYER CORPORATION, BAYER
HEALTHCARE, LLC, BAYER
ESSURE, INC., and
BAYER HEALTHCARE
PHARMACEUTICALS, INC.,

          Defendants-Respondents,

and

BAYER A.G., ROBERT WOOD
JOHNSON UNIVERSITY
HOSPITAL, AMBULATORY
SURGICAL PAVILION AT
ROBERT WOOD JOHNSON,
and ROBERT M. SCHAEFER,
M.D.,

     Defendants.
____________________________
            Argued November 18, 2019 – Decided January 14, 2020

            Before Judges Sabatino, Sumners and Geiger.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-4930-17.

            Neal M. Unger argued the cause for appellant (Neil M.
            Unger, PC, attorneys; Neal M. Unger, of counsel and
            on the briefs; Ronald L. Lueddeke, Jr., on the briefs).

            Erika L. Maley (Sidley Austin LLP) of the Washington,
            DC Bar, admitted pro hac vice, argued the cause for
            respondents (DLA Piper, LLP, and Erika L. Maley,
            attorneys; Jonathan F. Cohn (Sidley Austin LLP) of the
            Washington, DC Bar, admitted pro hac vice, Brian J.
            Pendleton, Jr., and Christopher M. Strongosky, of
            counsel and on the brief; Kristin A. Pacio, on the brief).

PER CURIAM

      Plaintiff Arcelia Sandobal Gomez appeals from the Law Division's

dismissal of all her claims for damages related to the implantation of a tubal

birth control device known as Essure. For the following reasons, we affirm.

                                        I.

      Essure is a permanently implanted birth control device that is not intended

to be removed. Unlike other marketed permanently implanted birth control

devices, insertion of Essure does not require a surgical incision. During the

implantation procedure, the doctor places flexible metallic coil inserts through

the vagina and cervix and into the fallopian tubes.       The implanted Essure

                                                                         A-0680-18T4
                                        2
stimulates growth during the three months after implantation. The tissue build-

up is meant to create a physical barrier that permanently prevents sperm from

reaching the woman's eggs.

      Essure was designed and initially manufactured by Conceptus, Inc. It was

subsequently manufactured, marketed, promoted, sold, and distributed by the

following "Bayer" organizations: (1) Bayer Essure, Inc., the device's

manufacturer;    (2)   Bayer    Healthcare,    LLC;    (3)   Bayer    Healthcare

Pharmaceuticals, Inc.; (4) Bayer Corp., the American parent company of Bayer

Essure, Bayer Healthcare, and Bayer Healthcare Pharmaceuticals; and (5) Bayer

A.G., the German parent company of Bayer Corp. (collectively the Bayer

defendants).    The Bayer defendants provided hysteroscopic equipment,

manufactured by a third-party, for use in implanting Essure.          The Bayer

defendants also provided training to physicians in how to implant Essure using

the hysteroscopic equipment it supplied.

      A. The Statutory and Regulatory Framework

      Before 1976, "the introduction of new medical devices was left largely for

the States to supervise as they saw fit." Riegel v. Medtronic, Inc., 552 U.S. 312,

315 (2008). This led to inconsistent and inadequate state regulation of complex

medical devices. Id. at 315-16. Congress recognized that federal oversight was


                                                                          A-0680-18T4
                                        3
needed to prevent Americans from being "put at risk from the use of unsafe and

ineffective medical devices." S. Rep. 94-33, at 2 (1975).

      To address these concerns, Congress enacted the Medical Device

Amendments of 1976 (MDA), 21 U.S.C. §§ 360c to 360m (2018), to the Food,

Drug and Cosmetic Act (FDCA), 21 U.S.C. §§ 301 to 399i. The MDA was

aimed at both protecting the public and ensuring that "innovations in medical

device technology [were] not stifled by unnecessary restrictions." H.R. Rep. 94-

853, at 12 (1976). To effectuate those dual goals, Congress "swept back some

state obligations and imposed a regime of detailed federal oversight"

administered by the Food and Drug Administration (FDA). Riegel, 552 U.S. at

316. A key goal was to avoid the undue burden imposed by inconsistent state

regulation.   H.R. Rep. 94-853, at 45.       This led to the twofold approach

implemented by Congress—combining a comprehensive "system of federal

regulation over the introduction of new [medical] devices" to broad preemption

of state law that imposes "any different or additional state safety or effectiveness

requirements." Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 765 (3d Cir.

2018) (citing 21 U.S.C. §§ 360c to 360f, 360k).

      The MDA contains an express preemption clause, which preempts any

state "requirement" affecting a medical device "(1) which is different from, or


                                                                            A-0680-18T4
                                         4
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). However, states are not precluded "from providing a

damages remedy for claims premised on a violation of FDA regulations," if "the

state duties in such a case 'parallel,' rather than add to, federal requirements."

Riegel, 552 U.S. at 330 (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 495

(1996)). Nevertheless, all enforcement actions under the MDA "shall be by and

in the name of the United States." 21 U.S.C. § 337(a). This section impliedly

preempts suits by private parties "for noncompliance with the medical device

provisions." Buckman Co. v. Plaintiffs' Legal Comm., 531 U.S. 341, 349 n.4

(2001).

      The MDA "classifies medical devices in three categories based on the risk

that they pose to the public." Lohr, 518 U.S. a 476. Class III devices are subject

to "the most federal oversight," Shuker, 885 F.3d at 765 (quoting Riegel, 552

U.S. at 316-17), because they "presen[t] a potential unreasonable risk of illness

or injury," Buckman, 531 U.S. at 344 (alteration in original) (quoting 21 U.S.C.

§ 360c(a)(1)(C)(ii)(II)). "Before a new Class III device may be introduced to

the market, the manufacturer must provide the FDA with a 'reasonable


                                                                          A-0680-18T4
                                        5
assurance' that the device is both safe and effective." Lohr, 518 U.S. at 477

(citing 21 U.S.C. § 360e(d)(2)). This includes

            "a detailed description of the proposed conditions of
            use of the device," 21 U.S.C. § 360c(a)(3)(D)(i); a
            sample label delineating the intended uses, 21 U.S.C. §
            360e(c)(1)(F); and "full reports of all information,
            published or known to or which should reasonably be
            known to the applicant, concerning investigations
            which have been made to show whether or not such
            device is safe and effective[.]" 21 U.S.C. §
            360e(c)(1)(A).

            [Cornett v. Johnson & Johnson, 414 N.J. Super. 365,
            386 (App. Div. 2010), aff'd in part and modified in part,
            211 N.J. 362 (2012).]

      The FDA may condition PMA "on adherence to performance standards,

restrictions upon sale or distribution, or compliance with other requirements.

The agency is also free to impose device-specific restrictions by regulation."

Riegel, 552 U.S. at 319 (citations omitted).

      There are two paths to approval of Class III devices. Relevant here is

premarket approval (PMA) of devices that are so innovative there are no other

"substantially equivalent" devices. Cornett v. Johnson & Johnson, 211 N.J. 362,

389 (2012), abrogated on other grounds, McCarrell v. Hoffmann-La Roche, Inc.,

227 N.J. 569 (2017). Obtaining PMA is rigorous.

                  To obtain pre-market approval, a device
                  manufacturer must submit to the FDA full

                                                                        A-0680-18T4
                                       6
                   reports of all investigations relating to the
                   device's safety or effectiveness; a "full
                   statement of the components, ingredients,
                   and properties and of the principle or
                   principles of operation" of the device; a full
                   description of the manufacturing methods
                   and the facilities and controls used for the
                   device's manufacturing; references to any
                   performance standards applicable to the
                   device; samples of the device and any
                   component parts; examples of the proposed
                   labeling for the device; and other
                   information[.]

                   [Walker v. Medtronic, Inc., 670 F.3d 569,
                   572-73 (4th Cir. 2012) (quoting 21 U.S.C.
                   § 360e(c)(1)).]

A device's labeling includes the Instructions for Use provided to physicians and

the Patient Information Booklet provided to patients.

      When determining whether to grant PMA, the FDA "weig[hs] any

probable benefit to health from the use of the device against any probable risk

of injury or illness from such use." Riegel, 552 U.S. at 318 (quoting 21 U.S.C.

§ 360c(a)(2)(C)). The FDA will "grant[] [PMA] only if it finds there is a

'reasonable assurance' of the device's 'safety and effectiveness.'" Ibid. (quoting

21 U.S.C. § 360e(d)). The FDA may "approve devices that present great risks

if they nonetheless offer great benefits in light of available alternatives." Ibid.




                                                                            A-0680-18T4
                                         7
      PMA has important legal effects. It "incorporates an FDA finding that a

device is safe and effective under the conditions of use included on the label and

that the label is not false or misleading." Cornett, 211 N.J. at 381 (citing 21

U.S.C. § 360e(d)(1)(A)). PMA also imposes federal safety requirements that

preempt different or additional state requirements. Riegel, 552 U.S. at 321

(quoting 21 U.S.C. § 360k(a)(1)).

      Once a device receives PMA, the manufacturer is prohibited, without FDA

approval, from making "changes in design specifications, manufacturing

processes, labeling, or any other attribute, that would affect safety or

effectiveness." Id. at 319. This prohibition includes adding warnings to the

label, "until it submits the proposed change as part of a supplemental PMA

application and obtains FDA approval." Cornett, 211 N.J. at 381 (citing 21

U.S.C. § 360e(d)(6)). Absent such FDA approval, the approved device must "be

made with almost no deviations from the specifications in its approval

application." Riegel, 552 U.S. at 323.

      "After approval, the devices are subject to additional reporting

requirements." Cornett, 211 N.J. at 381 (citing U.S.C. § 360i(a)(1), (3)).

            These include the obligation to: 1) inform the FDA of
            new clinical investigations or scientific studies
            concerning the device about which the manufacturer
            know or reasonably should know, 21 C.F.R. §

                                                                          A-0680-18T4
                                         8
            814.84(b)(2); and 2) report incidents in which the
            device may have caused or contributed to death or
            serious injury, or malfunctioned in a manner that would
            likely cause or contribute to death or serious injury if it
            recurred, 21 C.F.R. § 803.50(a).

            [Id. at 381-82 (citing Riegel, 552 U.S. at 319-20).]

      The FDA may withdraw the device's PMA "based on newly reported

data," however, it "must withdraw approval if it determines that a device is

unsafe or ineffective under the conditions in its labeling." Riegel, 552 U.S. at

319-20 (citing 21 U.S.C. §§ 360e(e)(1), 360h(e)).

      B. Premarket Approval of Essure

      The FDA granted Essure PMA in 2002. After Essure's approval, and

before the device was implanted in plaintiff, two pertinent PMA supplements

regarding the device's labeling were approved by the FDA:

            2012: patient and physician labeling updated to include
            results of 5-year follow-up of subjects in Phase II and
            pivotal trials and information on pregnancies that have
            occurred in the commercial setting (that is, outside of
            clinical trials).

            2013: patient labeling updated to include risks of
            chronic pain and device migration.

            [FDA, Regulatory History: Essure Permanent Birth
            Control, https://www.fda.gov/medical-devices/essure-
            permanent-birth-control/regulatory-history        (last
            updated May 15, 2019) (last visited January 2, 2020).]


                                                                          A-0680-18T4
                                        9
      C. Implantation of Essure and Alleged Resulting Problems

      On October 29, 2014, Robert M. Schaefer, M.D., implanted the Essure

device in plaintiff at the Ambulatory Surgical Pavilion at Robert Wood Johnson

(the Surgical Center). Plaintiff claims after implantation she "experience[d]

adverse reactions and side effects including . . . intermittent and severe

abdominal pain and chronic and abnormal vaginal bleeding" following

implantation.   Plaintiff states she underwent approximately six months of

diagnostic testing and the removal of uterine polyps during the period from July

2015 until January 2016. Plaintiff ultimately underwent a hysterectomy on

January 13, 2016, to remove the Essure.

      D. The Litigation

      On August 17, 2017, plaintiff filed a nine-count complaint alleging the

following causes of action:       medical malpractice (counts one and two);

negligence (count three); breach of express and implied warranties (count four);

gross negligence (count five); strict liability (count six); failure to warn (count

seven); fraud and misrepresentation (count eight); and violation of the Consumer

Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (count nine).

      Plaintiff alleged the following parties committed medical malpractice:

Dr. Schaefer, the Surgical Center, and Robert Wood Johnson University


                                                                           A-0680-18T4
                                       10
Hospital (the Hospital), the owner/operator of the Surgical Center. Dr. Schaefer

and the Hospital filed unopposed motions to dismiss the medical malpractice

claims with prejudice for failure to file an affidavit of merit. 1 The motions were

granted on March 29, 2018. Plaintiff does not appeal from those orders. On

April 26, 2018, a stipulation of dismissal with prejudice was entered as to the

Surgical Center. As a result, counts one and two were dismissed in their entirety

and only the products liability and related claims asserted against the Bayer

defendants (counts three through nine) remained.

      The Bayer defendants moved to dismiss plaintiff's claims with prejudice

as preempted by federal law and for failure to state a claim upon which relief

may be granted. On August 31, 2018, the court granted the motion dismissing

all claims against the Bayer defendants with prejudice.

      In its written statement of reasons, the motion court stated plaintiff's

claims were preempted. Noting that Essure received PMA, the court determined

the FDA had established requirements applicable to the device.          It further

determined that "[p]laintiff's claims require a finding that issues relating to


1
   A plaintiff who files suit against a physician or a hospital for medical
malpractice must provide the defendant with the affidavit of an appropriate
expert stating that the action has merit. N.J.S.A. 2A:53A-27. The affidavit must
be provided within the time limitations imposed by the statute. Ibid. Failure to
do so is "deemed a failure to state a cause of action." N.J.S.A. 2A:53A-29.
                                                                           A-0680-18T4
                                       11
factors such as warnings should have been different from the federal

requirements." It further found that plaintiff failed "to show her claims fall

within [the] narrow exception to this preemption rule."

      The motion court also concluded that the New Jersey Product Liability

Act (PLA), N.J.S.A. 2A:58C-1 to -11,

            limits the types of theories that are permissible in a
            products liability case such as design defects and
            manufacturing defects. As a result, certain claims do
            not fall within the PLA and are thus not permissible.
            These include claims made by [p]laintiff for negligent
            training and failure to report adverse events. As to the
            issue of the failure to report adverse events, this [c]ourt
            acknowledges that courts across the country are split.
            However, this [c]ourt is guided by the New Jersey
            Supreme Court decision of Cornett v. Johnson &
            Johnson, 211 N.J. 362 (2012)[,] which ruled in part that
            such claims are impliedly preempted. As to the claim
            for manufacturing defect, this [c]ourt finds that
            [p]laintiff has not sufficiently labeled what the
            violation is as it relates to federal manufacturing
            defects. The [c]ourt needs more than a flat allegation
            to understand what the actual defective manufacture is
            here as alleged by [p]laintiff. As a result, this [c]ourt
            finds that [p]laintiff has not labeled the defect and how
            it caused [p]laintiff's injuries, which would be
            necessary to state a claim and possibly proceed past a
            preemption analysis.

      Since plaintiff's claims for medical malpractice were previously

dismissed, the dismissal of her claims against the Bayer defendants was a final

adjudication. This appeal followed.

                                                                          A-0680-18T4
                                       12
Plaintiff raises the following points on appeal:

      I.     THERE IS A STRONG PRESUMPTION
             AGAINST PREEMPTION UNDER NEW
             JERSEY AND FEDERAL LAW.

      II.    THERE ARE VERY FEW MEDICAL DEVICE
             PRODUCT      LIABILITY       ACTIONS
             NATIONWIDE THAT FIND COMPLETE
             PREEMPTION OF A PLAINTIFF'S CLAIMS.

      III.   PLAINTIFF'S        CLAIMS         ARE      NOT
             PREEMPTED.

             A.    Plaintiff's Manufacturing Defect And
                   Design Defect Claims Are Not Preempted.

             B.    Plaintiff's Breach Of Express Warranty
                   Claims Are Not Preempted.

             C.    Plaintiff's Fraudulent And Negligent
                   Misrepresentation And Breach Of Implied
                   Warranty Claims Are Contained Within
                   The Product Liability Act And Are Not
                   Preempted.

             D.    Plaintiff's Failure To Warn Claims Are Not
                   Preempted.

             E.    Plaintiff's Negligent Training Claims Are
                   Not Preempted.

      IV.    PLAINTIFF HAS PLED VALID CLAIMS FOR
             RELIEF.

             A.    Plaintiff[] Has Sufficiently Pled Facts To
                   Show Causation And Reliance.


                                                                A-0680-18T4
                                13
                  B.    Plaintiff Has    Met The          Pleading
                        Requirements Of [Rule] 4:5-8.

            V.    DEFENDANTS FAIL TO HOLD A VALID
                  PREMARKET APPROVAL UNDER THE
                  MEDICAL DEVICES AMENDMENTS TO THE
                  FOOD, DRUG & COSMETIC ACT AND
                  THEREFORE PLAINTIFF'S STATE LAW
                  CLAIMS ARE NOT PREEMPTED.

      The primary issue presented on appeal is whether the MDA's express

preemption clause, 21 U.S.C. § 360k, bars plaintiff's state-law claims for

damages allegedly caused by a medical device given PMA by the FDA. The

secondary issue is whether plaintiff sufficiently pleaded any non-preempted

claims to avoid dismissal.

                                      II.

      "In considering a motion to dismiss under Rule 4:6-2(e), courts search the

allegations of the pleading in depth and with liberality to determine whether a

cause of action is '"suggested' by the facts." Rezem Family Assocs., LP v.

Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div. 2011) (quoting

Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989)). The

court should "ascertain whether the fundament of a cause of action may be

gleaned even from an obscure statement of claim, opportunity being given to

amend if necessary." Ibid. (quoting Di Cristofaro v. Laurel Grove Mem'l Park,


                                                                        A-0680-18T4
                                      14
43 N.J. Super. 244, 252 (App. Div. 1957)). "For this purpose, 'all facts alleged

in the complaint and legitimate inferences drawn therefrom are deemed

admitted.'" Rieder v. State, Dep't of Transp., 221 N.J. Super. 547, 552 (App.

Div. 1987) (quoting Smith v. City of Newark, 136 N.J. Super. 107, 112 (App.

Div. 1975)).

      "On appeal, we engage in a de novo review from a trial court's decision to

grant or deny a motion to dismiss filed pursuant to Rule 4:6-2(e)." Smith v.

Datla, 451 N.J. Super. 82, 88 (App. Div. 2017) (citing Rezem, 423 N.J. Super.

at 114). "We owe no deference to the trial court's conclusions." Rezem, 423

N.J. Super. at 114. We will uphold the dismissal if "the factual allegations are

palpably insufficient to support a claim upon which relief can be granted."

Rieder, 221 N.J. Super. at 552.

                                      III.

      In Reigel, the Court described the following two-part analysis for

determining whether a plaintiff's state law claims for harm caused by a PMA

device are preempted: "First, a court must determine whether the FDA has

imposed requirements for the device. Second, a court must determine whether

the common law claims are based on state requirements different from or in

addition to the federal requirements for the device." Cornett, 211 N.J. at 384


                                                                        A-0680-18T4
                                      15
(citing Riegel, 552 U.S. at 321-22). "[T]o escape preemption, the state claim

premised on a violation of FDA regulations must be based on state common law

duties parallel to but not in addition to federal requirements." Id. at 385 (citing

Riegel, 552 U.S. at 330).

      A plaintiffs' state-law claims for harm caused by a PMA device may also

be "impliedly pre-empted by" federal law. Buckman, 531 U.S. at 348. "[S]tate

law claims brought by individuals based on intentional misrepresentation to the

FDA during or after the PMA process are barred." Cornett, 211 N.J. at 385

(citing Buckman, 531 U.S. at 349 n.4). "[O]nly the federal government is

authorized to sue for failure to comply with the MDA provisions, including

providing false or misleading information." Ibid. (citing Buckman, 531 U.S. at

349 n.4). "Thus, regardless of how a plaintiff styles a state claim, if the claim

depends on the alleged violation of a federal requirement, it is functionally

equivalent to a claim grounded solely on the federal violation, and is impliedly

preempted." Cornett, 211 N.J. at 385 (citing Buckman, 531 U.S. at 352-53).

                                      IV.

      With those concepts in mind, we turn to New Jersey law regarding claims

for harm caused by an allegedly defective product. Such claims are generally

governed by the PLA. When our Legislature enacted the PLA, it "established


                                                                           A-0680-18T4
                                       16
'one unified, statutorily defined theory of recovery for harm caused by a product,

and that theory is, for the most part, identical to strict liability.'" Dean v. Barrett

Homes, Inc., 204 N.J. 286, 294 (2010) (quoting In re Lead Paint Litig., 191 N.J.

405, 436 (2007)). The PLA is, thus, "remedial legislation," enacted to "establish

clear rules" in claims "for damages for harm caused by products, including

certain principles under which liability is imposed." McDarby v. Merck & Co.,

401 N.J. Super. 10, 97 (App. Div. 2008) (quoting Zaza v. Marquess & Nell, Inc.,

144 N.J. 34, 47-48 (1996)).

      "A product liability action is defined as 'any claim or action brought by a

claimant for harm caused by a product, irrespective of the theory underlying the

claim, except actions for harm caused by breach of an express warranty.'"

Sinclair v. Merck & Co., 195 N.J. 51, 62 (2008) (quoting N.J.S.A. 2A:58C-

1(b)(3)). The PLA provides the following basis for liability:

             A manufacturer or seller of a product shall be liable in
             a product liability action only if the claimant proves by
             a preponderance of the evidence that the product
             causing the harm was not reasonably fit, suitable or safe
             for its intended purpose because it: a. deviated from the
             design specifications, formulae, or performance
             standards of the manufacturer or from otherwise
             identical units manufactured to the same manufacturing
             specifications or formulae, or b. failed to contain
             adequate warnings or instructions, or c. was designed
             in a defective manner.


                                                                               A-0680-18T4
                                         17
            [N.J.S.A. 2A:58C-2.]

In other words, a "prerequisite" for recovery under the PLA "is the existence of

a defective condition." Zaza, 144 N.J. at 49.

                                       V.

      A.    Plaintiff's Claims For Negligence, Breach Of Implied
            Warranty, Fraud And Misrepresentation, And Violations Of
            The CFA

      We first address plaintiff's claims for negligence (count three); breach of

implied warranties (count four); gross negligence (count five); fraud and

misrepresentation (count eight); and violation of the CFA (count nine). Plaintiff

argues those claims are not preempted by the MDA. We need not reach the issue

of whether those claims are preempted because, with the exception of plaintiff's

claim for negligent training, here, as in Cornett, "the PLA subsumed those

claims." Cornett, 414 N.J. Super. at 404.

      "With the sole exception of its accommodation for breach of express

warranty, the PLA displaces all other causes of action 'for harm caused by a

product, irrespective of the theory underlying the claim[.]'" Ibid. (alteration in

original) (quoting N.J.S.A. 2A:58C-1(b)(3)).           Put simply, the PLA

"encompass[es] virtually all possible causes of action relating to harms caused

by consumer and other products." Sinclair, 195 N.J. at 65 (quoting Lead Paint,


                                                                          A-0680-18T4
                                       18
191 N.J. at 436-37). Consequently, breach of implied warranty is no longer "a

viable separate claim" for harm caused by a product. Cornett, 414 N.J. Super.

at 404 (quoting Tirrell v. Navistar Int'l, Inc., 248 N.J. Super. 390, 398 (App.

Div. 1991)). A separate claim for negligence is similarly precluded. Tirrell,

248 N.J. Super. at 398. Plaintiffs are likewise barred from asserting "separate

causes of action under the PLA and the CFA." McDarby, 401 N.J. Super. at 98.

See also Sinclair, 195 N.J. at 66 ("The language of the PLA represents a clear

legislative intent that, despite the broad reach we give to the CFA, the PLA is

paramount when the underlying claim is one for harm caused by a product.").

As such, except for plaintiff's negligent training claim, counts three, four, five,

eight, and nine were properly dismissed, irrespective of any preemption

analysis, because the claims are precluded by the PLA.

      B.    Plaintiff's Claims For Breach Of Express Warranty, Failure To
            Warn, Negligent Training, And Manufacturing Defect

            1.     Breach of Express Warranty and Failure to Warn

      We next address plaintiff's claims for breach of express warranties (count

four) and failure to warn (count seven). Plaintiff again argues her claims are not

preempted by the MDA. We affirm the dismissal of those claims because

plaintiff has not pleaded her claims with sufficient specificity to survive a

preemption analysis.

                                                                           A-0680-18T4
                                       19
      If a plaintiff's state-law claim concerns the labelling of, or information

provided with, a PMA device, the possibility of preemption of that PLA claim

arises. Cornett, 211 N.J. at 387 (citing Kemp v. Medtronic, Inc., 231 F.3d 216,

236-37 (6th Cir. 2000)). PMA demonstrates the manufacturer established the

safety and effectiveness of the device for its approved uses. Ibid. The PMA

encompasses the device's label and instructions. Ibid. "The totality of the

approval represents a specific federal requirement." Ibid. (citing Kemp, 231

F.3d at 228).

      Our Legislature acknowledged the primacy of federal regulation of

medical devices when it included a "rebuttable presumption of the adequacy of

labels and instructions in the PLA."         Ibid. (citing N.J.S.A. 2A:58C-4).2

Accordingly, "a plaintiff asserting a failure to warn claim based on an inadequate

label or instructions" for a PMA device "has stricter pleading requirements." Id.

at 388. The "plaintiff must plead specific facts alleging 'deliberate concealment

or nondisclosure of after-acquired knowledge of harmful effects,' or

'manipulation of the post-market regulatory process.'" Ibid. (first quoting Rowe

v. Hoffman-La Roche, Inc., 189 N.J. 615, 626 (2007); then quoting McDarby,


2
  N.J.S.A. 2A:58C-4 states: "If the warning or instruction given in connection
with a . . . device . . . has been approved . . . by the [FDA] under the [FDCA ,] a
rebuttable presumption shall arise that the warning or instruction is adequate."
                                                                           A-0680-18T4
                                       20
401 N.J. Super. at 63). The heightened pleading requirement "serves to permit

a determination whether a failure to warn claim is preempted by the MDA or is

a permissible parallel state claim." Ibid.

      Cornett is instructive. In Cornett, the Court decided whether the state-law

claims asserted in forty-eight consolidated complaints constituted permissible

parallel claims or were preempted by Section 360k of the MDA. 211 N.J. at

368, 370. The named plaintiff, Billie Cornett, who suffered from coronary artery

disease and diabetes, had a Cypher® stent, a PMA device, implanted to treat his

heart condition. Id. at 368-70. Five months after the stent was implanted, a

blood clot formed near the site of the stent; Cornett suffered a subacute stent

thrombosis resulting in his death eleven days later. Id. at 368.

      Cornett's widow and others filed suit against the defendants for the

injuries allegedly caused by Cypher® stents. Id. at 368, 370. The defendants

moved to dismiss the plaintiffs' claims as preempted by the MDA. Id. at 370.

The plaintiffs were given leave to file an amended complaint that asserted the

following nine causes of action: (1) strict liability for defective design; (2) strict

liability for defective manufacture; (3) strict liability for failure to warn; (4)

breach of implied warranty; (5) breach of express warranty; (6) consumer fraud;

(7) punitive damages; (8) wrongful death; and (9) loss of consortium. Ibid.


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        The Court granted the defendants' motion to dismiss the amended

complaint as fully preempted by federal law. Cornett, 211 N.J. at 371. "[T]he

claimed express warranty was the patient information card and guide that the

FDA had specifically approved as part of [the Cypher® stent] label." Cornett,

414 N.J. at 383. Thus, a claim that the card and guide "failed to conform with

the materials expressly approved by the FDA . . . would be patently false.'" Id.

at 383-84 (alteration in original). Therefore, the motion court concluded the

plaintiffs' claim for breach of express warranty was "'nothing more than a

defective labeling/failure to warn claim, which is preempted' for a device

approved under the FDA's [PMA] regime." Id. at 384. It held the plaintiffs

alleged their claims were parallel to federal requirements merely to invoke the

exception to preemption but failed to set forth facts or legal authority that

demonstrated their claims were actually equivalent to the federal requirements.

Ibid.    The motion court dismissed the plaintiffs' wrongful death, loss of

consortium and survivorship claims as "derivative of the strict liability and

breach of warranty claims it found expressly preempted." Id. at 405.

        On appeal, we held the following claims were not preempted by federal

law: (1) manufacturing defect; (2) failure to warn, "to the extent that plaintiffs

based it on allegations of failure to satisfy federal requirements on disclosure ;"


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                                       22
and (3) breach of express warranty, "to the extent that plaintiffs based it on

voluntary statements." Id. at 405. We determined "reversal of the Rule 4:6-2(e)

dismissal of th[o]se predicate claims compel[led] reinstatement of [the]

derivative claims for wrongful death, loss of consortium, and survivorship." Id.

at 406. We held the dismissal of the remaining claims – defective design, breach

of implied warranty, consumer fraud, and punitive damages – "was proper as

either federally preempted or precluded by the PLA itself." Ibid.

      After the Court granted certification, the defendants withdrew their

challenge to the failure to dismiss the manufacturing defect claim. Cornett, 211

N.J. at 369 n.1. Accordingly, the Court did not decide the issue of whether the

plaintiffs' manufacturing defect claim was preempted; the opinion was limited

to whether the plaintiffs' failure to warn and breach of express warranty claims

were preempted by the MDA. Id. at 372 (citing Cornell v. Johnson & Johnson,

205 N.J. 317 (2011)).

      The Court engaged in the following analysis of the plaintiffs' failure to

warn claim:

              [T]he failure to warn claim relates to the duration of
              post-implantation anti-platelet therapy and the lack of
              comparative studies of the Cypher® stent and
              alternative devices. This claim is nothing more than a
              challenge to the adequacy of the information required
              by the FDA during the PMA process and label approved

                                                                        A-0680-18T4
                                       23
by the [FDA, which] falls within the PLA rebuttable
presumption and the Riegel express preemption rule.
We affirm its dismissal.

       Moreover, to the extent [the] claim is based
solely on a contention that defendants obtained [PMA]
only after submitting fraudulent representations to or
withholding material information from the FDA, this
claim falls squarely within the Buckman implied
preemption rule. We affirm its dismissal. So, too,
plaintiffs' failure to warn claim is preempted and
dismissed to the extent that it can be established solely
by evidence of fraud on the [FDA].

      ....

       On the other hand, to the extent [the] plaintiffs' .
. . claim is based on other allegations of wrong-doing
apart from [the] defendants' failure to comply with FDA
disclosure requirements, it is not preempted. [The
plaintiffs alleged the] defendants withheld information
from the general public and the medical community
about the limitations . . . or safe use of the device,
including information that instructions for post-
implantation therapy were not part of the PMA process,
and misrepresented to the general public and medical
community that the Cypher® stent was non-
thrombogenic. As stated, this claim overcomes the
PLA rebuttable presumption of adequacy. [Perez v.
Wyeth Labs., Inc., 161 N.J. 1, 25 (1999).] Such a claim
falls within a traditional area of state concern and
regulation because fraud on the FDA is not an element
of the claim and it can be proved by evidence other than
by evidence of fraud on the FDA.

[Id. at 389-90 (footnotes omitted).]



                                                              A-0680-18T4
                           24
      The Court determined the amended complaint, "read indulgently and in its

entirety," presented a "colorable" failure to warn claim that was not impliedly

preempted. Id. at 391. Nevertheless, the Court warned its decision came "at an

early stage in the proceedings" as the motion to dismiss was filed soon after the

plaintiffs filed their amended master complaint. Ibid. The Court instructed the

trial court that it "should not hesitate to grant" summary judgment, "if

appropriate." Consequently,

            [i]f discovery reveals that the failure to warn claim is
            nothing more than a private action to enforce FDA
            statutes and regulations, or that plaintiffs' claim is no
            more than a challenge to the approval of the device or
            label, or that proof of fraud on the FDA is an element
            of the[] claim, or that defendants' off-label promotional
            activities fall within the MDA safe harbor . . . ."

            [Ibid.]

      Here, the following statement in plaintiff's complaint comprises her entire

failure to warn claim:

            The Bayer defendants manufactured, distributed into
            the stream of commerce, and/or marketed the defective
            Essure device that was not reasonably fit, suitable or
            safe for its intended purpose because Essure failed to
            contain adequate warnings or instructions, was
            designed in a defective manner, and such other defects
            as continuing discovery and investigation may reveal.




                                                                         A-0680-18T4
                                      25
Plaintiff has not satisfied the heightened pleading requirement applicable to her

failure to warn claim.      Accordingly, the motion court properly dismissed

plaintiff's failure to warn claim.

      The MDA also preempts an express warranty claim based on the

information contained in FDA approved product labels and packaging inserts.

Id. at 392. "Like other state requirements that exceed federal requirements for

a PMA device, a state claim that allows liability for statements in the FDA-

approved label and other documentation is preempted." Cornett, 414 N.J. Super

at 403 (citing Riley v. Cordis Corp., 625 F. Supp. 2d 769, 787-88 (D. Minn.

2009)). The Supreme Court engaged in the following analysis of the plaintiffs'

breach of express warranty claim:

                   Following Riegel, generalized state common law
             theories of liability, such as alleged in the [plaintiffs'
             complaint], are precisely the types of claims preempted
             by the MDA.

                   ....

                   [T]o succeed on the breach of express warranty
             claim, [the] plaintiffs must show . . . the label provides
             inaccurate or insufficient information in spite of FDA
             approval following the rigorous PMA process. Success
             on this state law claim would inevitably impose greater
             requirements than those already established by the
             MDA. This claim is, therefore, preempted.



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                                        26
                   On the other hand, to the extent [the] plaintiffs
            allege [the] defendants . . . deviated from the labeling
            and instructions for use through voluntary statements .
            . . in the course of its marketing efforts, this claim is
            not preempted.

            [Cornett, 211 N.J. at 392-93.]

The Court held the only aspects of the plaintiffs' breach of express warranty

claim that was not preempted were the "voluntary statements" by the defendants

that were "not approved . . . or mandated by the FDA about the use or

effectiveness of the product for on-label or off-label uses," "because federal law

requires any warranty statement to be truthful and accurate." Id. at 392 (citing

Cornett, 414 N.J. Super. at 404). When so "limited, an express warranty claim

based on state law does not impose additional requirements or obligations on

[medical device manufacturers] and is not preempted." Ibid. (citing Cornett,

414 N.J. Super. at 404).

      Here, plaintiff's breach of express warranty claim is limited to the

following allegations:

            43. [Bayer] expressly . . . warranted to the general
            public, and to [plaintiff] in particular, that the . . .
            Essure device was safe, merchantable, and fit for the
            use for which it was intended.

            44. [Bayer] breached the aforesaid warranties in that the
            Essure device was unsafe, not of merchantable quality,


                                                                          A-0680-18T4
                                       27
             and/or unfit for the purposes and use for which it was
             intended.

             45. Plaintiff, relied upon the warranties made by
             [Bayer].

Once again, plaintiff did not plead her claim with sufficient specificity to survive

the motion to dismiss.

             2.    Negligent Training

      We next address the dismissal of plaintiff's negligent training claim. We

find the Eastern District of Pennsylvania's decision in McLaughlin v. Bayer

Corp., 172 F. Supp. 3d 804 (E.D. Pa. 2016), to be persuasive authority. In

McLaughlin, the plaintiffs alleged Bayer was liable for negligent training

because it failed to (1) "abide by the FDA training guidelines," i.e., the plaintiffs

alleged Bayer provided "training [that was] different from that of the 'Physician

Training Manual[]'" approved by the FDA; (2) properly supervise the plaintiffs'

procedures; (3) provide the plaintiffs' implanting physicians with adequate

training on the use of the hysteroscopic equipment; and (4) "advise implanting

physicians of the adverse events and non-conforming product."            Id. at 816

(alteration in original). The plaintiffs asserted Bayer's negligent training caused

their damages "insofar as the Essure device migrated from [their] fallopian tubes

and caused various complications." Ibid.


                                                                             A-0680-18T4
                                        28
      The McLaughlin court engaged in the following analysis:

            [A]t least to the extent that the claim alleges that Bayer
            failed to abide by FDA-approved training
            [requirements], the negligent training claim does not
            seek to impose training requirements different from
            those in the federal requirements and, thus, is not
            expressly preempted on that basis but, rather, asserts a
            permissible parallel claim. . . .

                  ....

                   Reading the [c]omplaint in the light most
            favorable to [the plaintiffs], it alleges that Bayer, by
            training [the plaintiffs' implanting] physicians,
            assumed a duty to do so non-negligently; that Bayer
            breached that duty by failing to follow the FDA-
            imposed training guidelines; and that [the plaintiffs']
            injuries, all of which are alleged to have arisen from the
            migration of the Essure device from [their] fallopian
            tubes, were caused by Bayer's training deficiencies.
            However, the [c]omplaint does not allege how Bayer's
            training departed from the FDA-approved guidelines,
            much less any facts that give rise to a recognizable
            theory as to how any departure from the training
            guidelines may have caused each [p]laintiff's Essure
            device to migrate from her fallopian tubes.

            [Id. at 816-17 (footnotes and citations omitted).]

As a result, the McLaughlin court dismissed the plaintiffs' negligent training

claims for failure to state a claim upon which relief can be granted because their

"bald allegations of both negligence and causation d[id] nothing more than posit

a 'sheer possibility that [Bayer] has acted unlawfully,' without setting forth a


                                                                          A-0680-18T4
                                       29
plausible claim of negligent training." Id. at 817-18 (alteration in original)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

      Here, plaintiff's entire negligent training allegation is contained in

paragraph forty of the complaint:

             [Bayer] negligently failed to properly and/or
            adequately train implanting health care providers on
            how to use the Essure device and hysteroscopic
            equipment provided for the procedure, failed to ensure
            that ECTs were performed, failed to properly screen
            physicians who were not competent or qualified to use
            said Essure device and hysteroscopic equipment and
            created an unreasonably dangerous plan of distribution
            at the expense of Plaintiff's health and well-being.

      Because plaintiff's negligent training claim is so insufficiently pleaded,

we are prevented from determining whether it is based upon any non-preempted

claim for relief. Id. at 818. Plaintiff does not allege Bayer's training departed

from the FDA-approved guidelines, much less how it departed from the

guidelines. Nor does she posit any theory as to how the allegedly negligent

training caused plaintiff's injury. For these reasons, the negligent training claim

was properly dismissed.

            3.     Manufacturing Defect

      Lastly, even when read indulgently, plaintiff's complaint claim for "strict

liability," which we construe as a manufacturing defect claim, did not assert


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                                       30
sufficient facts or a cognizable theory of liability to survive defendants' motion

to dismiss.

      Manufacturers of PMA devices are:

              required to follow the design controls process as
              enumerated in 21 C.F.R. § 820.30. In addition to design
              controls, the manufacturer must also comply with
              manufacturing controls outlined at 21 C.F.R. §
              814.20(b)(4) and § 820. These controls require the
              manufacturer to submit to the FDA a complete
              description of the methods used in, and the facilities
              and controls used for, the manufacture, processing,
              packing, storage, and where appropriate, installation of
              the device.

              [Cornett, 414 N.J. Super. at 386.]

      A plaintiff's manufacturing defect claim that alleges the PMA device was

"adulterated due to failure to comply with federal regulations" is "not preempted

because a jury could find the defendants breached their duty of care to the

plaintiff and that the product was unreasonably dangerous without imposing

different or additional requirements." Id. at 398 (citing Hofts v. Howmedica

Osteonics Corp., 597 F. Supp. 2d 830, 836-37 (S.D. Ind. 2009)).

      Plaintiff's complaint states:

              55. The Essure devices manufactured, sold, promoted
              and/or distributed by [Bayer] were, at the time they left
              [the] control of [Bayer], defective products,
              unreasonably dangerous for use, which were not fit,
              suitable and/or safe for their intended use of

                                                                          A-0680-18T4
                                        31
            contraception in otherwise healthy women resulting in
            the injuries and damages to plaintiffs as stated above.

            56. Plaintiff used the Essure device in the way [Bayer]
            intended it to be used and in a manner which was
            reasonably foreseeable by [Bayer].

            57. Plaintiff's injuries and reliance upon [Bayer's]
            misrepresentations and expertise were reasonably
            foreseeable by [Bayer].

            58. [Bayer] failed to warn Plaintiff of the risks inherent
            in the insertion and function of the Essure device.

            59. Plaintiffs therefore rely upon the doctrine of strict
            liability in tort against [Bayer].

            60. [Bayer is] strictly liable for plaintiff['s] injuries and
            loss pursuant to [the PLA].

            61. As the direct result of [Bayer's] conduct, [p]laintiff
            suffered severe and permanent injuries.            As a
            consequence thereof, she has suffered great pain,
            disability and mental anguish, and because of the
            permanency of said injuries she will continue to suffer
            in the future; moreover, she has suffered other injuries
            to [p]laintiff's danger and detriment.

As with her negligent training claim, plaintiff fails to adequately state a

manufacturing defect claim. Plaintiff does not allege Bayer's manufacturing

process departed from the FDA-approved process, much less how it departed

from the approved process. In that regard, noticeably absent from the complaint

and plaintiff's opposing papers are any facts or allegations that the Essure


                                                                            A-0680-18T4
                                        32
implanted deviated from the design approved by the FDA. Nor does she posit

any theory as to how the allegedly defective manufacturing process caused her

injury. During oral argument before this court, plaintiff conceded that she had

no additional facts she could plead in support of her claims if she were permitted

to file an amended complaint.           Given these circumstances, plaintiff's

manufacturing defect claim, comprised of mere bald assertions, was properly

dismissed.

                                        VI.

      In sum, the dismissal of plaintiff's complaint with prejudice is affirmed.

Plaintiff's claims for negligence (other than negligent training), breach of

implied warranties, fraud and misrepresentation, strict liability, and violations

of the CFA, are subsumed by the PLA.           Cornett, 414 N.J. Super. at 404.

Plaintiff's claims for negligent training, breach of express warranties, and failure

to warn were properly dismissed due to plaintiff's failure to satisfy the "stricter

pleading requirements" applicable to claims for harm allegedly caused by PMA

devices. Cornett, 211 N.J. at 388. Plaintiff's claim for manufacturing defect

amounts to nothing more than an insufficient, factually unsupported, conclusory

allegation. During oral argument before this court, plaintiff acknowledged that

no additional facts would be added if she were permitted to file an amended


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                                        33
complaint.    The motion court properly concluded that even when read

indulgently, plaintiff has not sufficiently pleaded her claims to allow the court

to conduct a proper preemption analysis or to otherwise survive dismissal.

Dismissal of the complaint for "failure to state a claim upon which relief can be

granted" was appropriate. R. 4:6-2(e).

      We are mindful of the large number of reported problems experienced by

women who had Essure birth control devices implanted. We are also aware of

the non-binding cases in other jurisdictions which reach a different conclusion

and which are not subject to New Jersey precedent. Our Supreme Court has

spoken on the subject of federal preemption and the stricter pleading

requirements pertaining to claims involving PMA devices, and we follow its

guidance here.

      Affirmed.




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