                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                                                April 21, 2015
                                   PUBLISH                  Elisabeth A. Shumaker
                                                                Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT


 PATRICIA CAPLINGER,

       Plaintiff-Appellant,

 v.

 MEDTRONIC, INC., a Minnesota
 corporation; MEDTRONIC
 SOFAMOR DANEK USA, INC., a
                                                      No. 13-6061
 Tennessee corporation,

       Defendants-Appellees.


 THE PRODUCT LIABILITY
 ADVISORY COUNCIL, INC.,

       Amicus Curiae.


                 Appeal from the United States District Court
                    for the Western District of Oklahoma
                         (D.C. No. 5:12-CV-00630-M)


Allison M. Zieve of Public Citizen Litigation Group, Washington, D.C. (Scott L.
Nelson of Public Citizen Litigation Group, Washington, D.C., and James W.
Dobbs of Rhodes Dobbs & Stewart, PLLC, Edmond, Oklahoma, with her on the
briefs), for Plaintiff-Appellant.

Andrew E. Tauber of Mayer Brown LLP, Washington, D.C. (Daniel L. Ring of
Mayer Brown LLP, Washington, D.C. and Scott M. Noveck, formerly of Mayer
Brown LLP, Washington, D.C., and Michael K. Brown, James C. Martin, and Lisa
M. Baird of Reed Smith LLP, Los Angeles, California, with him on the brief), for
Defendants-Appellees.
Alan Untereiner and Donald Burke of Robbins, Russell, Englert, Orseck,
Untereiner & Sauber LLP, Washington, D.C., and Hugh F. Young, Jr., of the
Product Liability Advisory Council, Inc., Reston, Virginia, on the brief for
amicus curiae Product Liability Advisory Council, Inc., in support of Defendants-
Appellees.


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


GORSUCH, Circuit Judge.


      Some medical devices are so risky they can’t be sold without the federal

government’s prior approval. While even relatively simple things like bandages

face some degree of federal oversight, manufacturers of pacemakers, heart valves,

and the like must prove the “safety and effectiveness” of their devices to the

FDA’s satisfaction before offering them for sale. Batteries of tests must be

performed and presented and the agency’s premarket approval process can take

years. Beyond guarding the gate to the market square, the FDA also acts as

censor for those allowed to enter. A manufacturer must receive the agency’s

approval for any instructional or warning label associated with its device. And

once the device and label are approved, the manufacturer usually may not change

them without the agency’s consent. See 21 U.S.C. § 360e(d)(1)(A), (d)(6)(A)(i);

Riegel v. Medtronic, Inc., 552 U.S. 312, 319 (2008).

      As with most federal regulatory regimes, Congress had to balance

competing goods when it enacted the Medical Device Amendments (MDA) to the

                                         2
Federal Food, Drug, and Cosmetics Act (FDCA). Perhaps most notably, it had to

weigh the good of ensuring that proposed medical devices are carefully

scrutinized for safety against the good of preserving the freedom of patients and

doctors to use potentially life-saving technology as they see fit and without undue

delay. One arena in which these objectives clashed during the legislative process

involved this question: to what extent (if any) should states be able to layer

additional rules on top of Congress’s? Allowing more regulation of medical

devices could yield benefits for patient safety. But it could also mean forcing

manufacturers to abide not one but fifty-one sets of requirements, a prospect that

could deter or delay access to innovative devices and wind up hurting more

patients than it helps.

      Exercising its authority under the Supremacy Clause, Congress chose to

balance these competing considerations by instructing that:

      [N]o 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).




                                          3
      The question we face is whether this provision forecloses Patricia

Caplinger’s state law tort suit against Medtronic. Medtronic produces Infuse, a

device that stimulates bone growth to repair damaged or diseased vertebrae.

When it approved the device for sale, the FDA required the company to include a

warning label instructing that Infuse should “be implanted via an anterior”

surgical approach. The label further cautioned that the device’s “safety and

effectiveness . . . in surgical techniques other than anterior open or anterior

laparoscopic approaches have not been established” and that “[w]hen

degenerative disc disease was treated by a posterior lumber [sic] interbody fusion

procedure with cylindrical threaded cages, posterior bone formation was observed

in some instances.” Medtronic Sofamor Danek, InFUSE Bone Graft/LT-CAGE

Lumbar Tapered Fusion Device Important Medical Information (2002).

      Despite this warning, Ms. Caplinger alleges, Medtronic and its

representatives promoted Infuse for use in a posterior surgical approach — an

“off-label” use as it’s known in the industry. Ms. Caplinger alleges that a

Medtronic representative personally recommended using the device in this

particular way to her and her doctor. All the while, Ms. Caplinger asserts, the

company harbored evidence documenting dangers associated with posterior

surgical approaches that it kept hidden. According to Ms. Caplinger, she and her

doctor relied on Medtronic’s representations and elected to implant the device

using a posterior approach — only to watch complications emerge that could have

                                           4
been avoided had they known the truth about Infuse. Ms. Caplinger alleges that

Medtronic’s conduct exposed the company to liability under a variety of state tort

theories. But the district court held all of these state law claims either

insufficiently pleaded or preempted, and it’s this decision we’re now asked to

revisit.

                                           *

       At first glance the answer to this appeal might appear easy enough. Section

360k(a) preempts “any requirement” imposed by states on manufacturers that

differs from or adds to those found in the FDCA. Given this expansive language

one might be forgiven for thinking all private state law tort suits are foreclosed.

After all, a “requirement” usually means a request, need, want, or demand. See

13 The Oxford English Dictionary 682 (2d ed. 1989). And an adverse tort

judgment seems to involve just that: a demand that a defendant appear to answer

for its conduct and pay damages for failing some state law duty. Certainly some

commentators have argued that the obligation to pay state law judgments amounts

to an additional state law requirement warranting preemption under § 360k(a).

See, e.g., Mark Herrmann & Geoffrey J. Ritts, Preemption and Medical Devices:

A Response to Adler and Mann, 51 Food & Drug L.J. 1, 15-16 (1996).

       But the answer to this appeal isn’t so simple. The Supreme Court has

issued a number of opinions that embody “divergent views” about the proper role

of the MDA’s preemption provision, a fact that has yielded considerable

                                           5
“uncertainty” among the lower courts seeking to apply the statute to cases like

this one. Max N. Helveston, Preemption Without Borders: The Modern

Conflation of Tort and Contract Liabilities, 48 Ga. L. Rev. 1085, 1124 (2014);

see also Martin v. Medtronic, Inc., 254 F.3d 573, 578-79 (5th Cir. 2001)

(observing the difficulty in “extracting the final meaning” of the Supreme Court’s

cases in this area); Schouest v. Medtronic, Inc., 13 F. Supp. 3d 692, 700 (S.D.

Tex. 2014) (“Courts have struggled with applying the Supreme Court’s

preemption rulings to cases involving the Infuse device.”); Carrelo v. Advanced

Neuromodulation Sys., Inc., 777 F. Supp. 2d 303, 310 (D.P.R. 2011) (noting “the

present struggle . . . to determine whether state-law claims are preempted by the

MDA”).

      The Supreme Court’s first significant encounter with the MDA’s

preemption provision came in Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).

There the Court rejected the notion that state law tort suits are always preempted.

It held that tort suits do not impose new “requirements” on manufacturers and are

not preempted so long as the duties they seek to impose “parallel” duties found in

the FDCA. Id. at 495. The fact that a manufacturer is “required” to defend itself

against a damages remedy nowhere provided for in federal law is, the Court

indicated, neither here nor there.

      But the Court’s answer only invited the next question: when exactly does a

state law duty “parallel” a federal law duty enough to evade preemption? That

                                         6
term doesn’t appear in the statute, so its meaning was left entirely to judicial

exposition. And in Lohr itself five justices took the view that state and federal

law duties “parallel” each other not only when they are identical, but also when

state law imposes duties on the defendant that are “narrower, not broader” than

those found in the FDCA. Id. So, for example, a state claim requiring a plaintiff

to prove that a manufacturer negligently breached a duty of care might survive

preemption if a federal regulation would impose strict liability in the same

situation.

      Now, you might ask, why isn’t a narrower state law requirement at least

“different from” a broader federal requirement — and thus preempted by

§ 360k(a)’s express terms? The Lohr majority acknowledged that a state duty

imposing a “narrower requirement” is indeed “‘different from’ the federal rules in

a literal sense.” Id. And when it comes to interpreting the text of a statute, that’s

often the sense that matters most. See, e.g., Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A., 530 U.S. 1, 6 (2000) (noting that “when the statute’s

language is plain, the sole function of the courts — at least where the disposition

required by the text is not absurd — is to enforce it according to its terms”

(internal quotation marks omitted)). But all the same the Lohr majority adopted a

test that leaves it to lower courts to try to resolve whether a state duty is “literally

different” but “narrower” (and thus permissible) or “too different” and “broader”

(and thus impermissible). Lower courts have struggled ever since when it comes

                                           7
to trying to decide whether particular state claims do or don’t “parallel” putative

federal counterparts. See, e.g., In re Medtronic, Inc., Sprint Fidelis Leads Prods.

Liab. Litig., 623 F.3d 1200, 1204 (8th Cir. 2010) (noting that the “contours of the

parallel claim exception” are “as-yet ill defined”); Mark Herrmann, David Booth

Alden, & Bradley W. Harrison, The Meaning of the Parallel Requirements

Exception Under Lohr and Riegel, 65 N.Y.U. Ann. Surv. Am. L. 545, 546 (2010)

(“This parallel requirements exception is far from clear.”); David Chang, Note,

Internalizing the External Costs of Medical Device Preemption, 65 Hastings L.J.

283, 295 (2013) (noting that the Court’s decisions have not “provide[d] much

guidance as to what constitutes a parallel claim”).

      Neither are these the only directions Lohr left us to contend with. Section

360k(a) provides that state laws are preempted to the extent they conflict with

“any [federal] requirement applicable under this chapter to the device.” The

chapter in question is chapter 9 of title 21 of the U.S. Code, which contains the

whole of the FDCA. So, again read literally, it would seem “any” federal

requirement imposed by the FDCA is capable of preempting any different or

additional state requirement. But again the Lohr majority held otherwise,

instructing lower courts that for preemption to take place the FDA must first issue

some regulation “specific” to a “particular device.” 518 U.S. at 498-99 (quoting

21 C.F.R. § 801.1(d)). Put differently, a device must undergo the premarket

approval process — or, the Court suggested, perhaps something like it. See id.;

                                          8
Riegel, 552 U.S. at 322-23. Lawsuits aimed at less highly regulated devices —

like those subject only to “general” FDA regulatory requirements applicable to all

devices — are not preempted. See Lohr, 518 U.S. at 500. To be sure, Lohr itself

wasn’t unequivocal on this point: the Court acknowledged the possibility that

“general” federal requirements might sometimes preempt state requirements. Id.

But when it comes to when and what kinds of “general” requirements have

preemptive effect, or what sort of device-specific regulations beyond the

premarket approval process might bear that same power, Lohr told us little. See

Scott W. Sayler & Steven M. Thomas, Post-Decision Diagnosis: Medical Device

Preemption Alive and Mostly Well After Medtronic, Inc. v. Lohr, 6 Annals Health

L. 185, 196 (1997).

      Since Lohr, the Supreme Court has twice revisited and cut back the scope

of its initial decision. The first blow fell in Buckman Co. v. Plaintiffs’ Legal

Committee, 531 U.S. 341 (2001). There the Court addressed 21 U.S.C. § 337(a),

a provision authorizing the federal government to enforce the MDA. In that

statute’s language and structure the Court found “clear evidence that Congress

intended that the MDA be enforced exclusively by the Federal Government.” Id.

at 352. For this reason, Buckman concluded, § 337(a) preempts any state tort

claim that exists “solely by virtue” of an FDCA violation — say, a claim against a

manufacturer for violating the FDCA’s prohibition against making false

statements to the FDA during the device-approval process. Id. at 353. At the

                                          9
same time, the Court left undisturbed the portion of Lohr allowing state lawsuits

based on “traditional state tort law” that “predate[s]” the FDCA but happens to

“parallel” it. Id. So it is that lower courts must now accept both the notion that

§ 337(a) shows Congress intended the federal government to enjoy exclusive

enforcement authority over the MDA and the notion that § 360k(a) permits

private tort suits that do no more than parallel the MDA. See Catherine M.

Sharkey, Tort-Agency Partnerships in an Age of Preemption, 15 Theoretical

Inquiries L. 359, 369-70 (2014) (noting the tension in allowing private tort suits

in light of § 337(a)’s grant of exclusive enforcement authority).

      The Court retreated further from Lohr in Riegel v. Medtronic, Inc., 552

U.S. 312 (2008). As Riegel saw it, the clause in § 360k(a) providing that “any

[state] requirement . . . which relates to the safety or effectiveness of the device”

should be read literally: any state requirement, whether device specific or

generally applicable, is preempted when it differs from or adds to federal

requirements. 552 U.S. at 327-28. While perhaps unremarkable on its own terms,

this invited a new tension with Lohr and its suggestion that (at least usually) only

device-specific federal requirements bear preemptive power even though the

statute’s literal language suggests “any” federal requirement hold that power.

True, Lohr and Riegel formally addressed different clauses in § 360k(a) — Lohr

interpreted the “any” federal requirements clause and Riegel discussed the “any”

state requirements clause. But it’s no small mystery why the same word — “any”

                                          10
— should bear such different meanings in two such similar clauses that lie cheek

by jowl in the same statutory subsection.

      How are we supposed to apply all these competing instructions? It’s “no

easy task.” Martin, 254 F.3d at 579. Even the usually straightforward job of

laying out the rules governing our review is a real “struggle[]” in this area.

Schouest, 13 F. Supp. 3d at 700. One can’t help but wonder if perhaps some of

those rules warrant revisiting and reconciliation. But if we understand our

directions, it seems we aren’t supposed to ask whether Ms. Caplinger wishes to

use state tort law to impose on Medtronic a safety requirement that is “different

from, or in addition to” a federal requirement so much as whether she seeks to

vindicate a state duty that is “narrower” or “broader” than a federal duty. To the

extent the state law duty is narrower than or equal to the federal duty it survives,

through what seems a sort of Venn diagram approach to preemption. Still, even if

the state claim fails that test because it would impose a “broader” duty than can

be found in federal law, it appears we may not find the claim preempted just

because it conflicts with “any” federal requirement. Instead, we may find the

state law claim preempted only if there exists a device-specific federal

requirement, though this test admittedly finds no analogue when it comes to the

state requirement clause interpreted in Riegel. Finally, should the state claim

survive this far, we must ask whether it exists “solely by virtue” of the federal

statutory scheme (unacceptable) or “predates” the scheme (acceptable). It’s no

                                         11
wonder that the difficulty of crafting a complaint sufficient to satisfy all these

demands has been compared to the task of navigating between Scylla and

Charybdis. Jean Macchiaroli Eggen, Navigating Between Scylla and Charybdis:

Preemption of Medical Device “Parallel Claims,” 9 J. Health & Biomedical L.

159, 161 (2013). Certainly the task we face in trying to apply the Court’s

directions faithfully feels something like that.

                                           *

      How do Ms. Caplinger’s pleadings measure up to the Court’s announced

preemption principles? Her complaint raises claims for strict products liability

(alleging defective design and inadequate warning), breach of warranty, negligent

misrepresentation, and negligence. 1 There’s no dispute in our case that device-

specific federal requirements apply to Infuse: the device endured the premarket

approval process. So the MDA will preempt all of Ms. Caplinger’s claims unless

federal requirements impose duties that are at least as broad as those she seeks to

vindicate through state law. See Riegel, 552 U.S. at 322-24.

      It’s here the problems begin. When it comes to her design defect and

breach of warranty claims, Ms. Caplinger has not attempted, in either the district



      1
        Ms. Caplinger also pursues claims for fraud, but we don’t have to
consider whether they survive preemption because we agree with the district court
that Ms. Caplinger’s complaint doesn’t identify the who, what, when, where, and
how of the alleged fraud with the specificity required by Federal Rule of Civil
Procedure 9(b). See, e.g., United States ex rel. Sikkenga v. Regence Bluecross
Blueshield of Utah, 472 F.3d 702, 726-27 (10th Cir. 2006).

                                          12
court or this one, to identify a single parallel federal statute or regulation. For her

failure to warn, negligence, and negligent misrepresentation claims, Ms.

Caplinger has at least offered candidates for a parallel federal duty: 21 U.S.C.

§ 352 and 21 C.F.R. § 801.5. Through the combined effect of these provisions, a

device’s warning label must not be “false or misleading in any particular,” 21

U.S.C. § 352(a), and generally must bear “directions under which the layman can

use a device safely and for the purposes for which it is intended,” 21 C.F.R.

§ 801.5. But on inspection these regulations do not provide parallels to most of

the state claims she seeks to pursue. They don’t because the federal regulations

Ms. Caplinger cites govern only a device’s labeling and her state law claims go

well beyond that, attacking not just Infuse’s label but also Medtronic’s

advertising and oral and written representations to her, her doctor, and others. So

as a matter of law Ms. Caplinger’s state law claims substantially exceed the

potential scope of any federal regulation she’s identified.

      Even with respect to her remaining labeling attack that falls within the

arguable (Venn diagram) scope of the regulations she’s cited, another problem

quickly emerges. Infuse is a prescription device. As federal regulations explain,

that usually means it isn’t possible to prepare adequate directions for its safe use

by laymen. Id. § 801.109. And for precisely this reason, 21 C.F.R. § 801.109

generally absolves manufacturers from liability under § 352 and § 801.5 so long

as they label their prescription devices in a certain manner approved by the FDA.


                                          13
More than that, once the FDA approves a device’s label as part of the premarket

approval process (as it has here), the manufacturer usually may not alter the

label’s warnings without prior agency approval. See 21 U.S.C. § 360e(d). So in

the end Ms. Caplinger relies exclusively on a legally inapplicable provision in her

effort to establish a parallel claim (§ 801.5), fails anywhere to discuss the

apparently applicable one (§ 801.109), and offers no answer to the conundrum

how she might impose a state tort duty on Medtronic to revise a label that federal

regulation precludes it from revising.

      In these circumstances, we cannot see how the district court can be faulted

for dismissing her claims. A district court may grant judgment as a matter of law

under Federal Rule of Civil Procedure 12(b)(6) on the basis of an affirmative

defense like preemption when the law compels that result. See Jones v. Bock, 549

U.S. 199, 212-15 (2007); 5B Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1357 (3d ed. 2004 & Supp. 2014) (collecting cases).

Here, Medtronic argued for just that result. It didn’t dispute the veracity of any

of Ms. Caplinger’s factual pleadings. Instead, it contended that, even taking all

her factual pleadings as true, not a single regulation or statute exists in all the

federal law books parallel to the state law claims she sought to pursue. In reply,

Ms. Caplinger didn’t identify any viable parallel federal duty and so the district

court quite reasonably concluded that the Medtronic had met its burden of

showing that the law compelled dismissal of the complaint. See, e.g., Wolicki-


                                          14
Gables v. Arrow Int’l, Inc., 634 F.3d 1296, 1301-03 (11th Cir. 2011) (affirming

the dismissal of a complaint where the plaintiff failed to identify a parallel federal

duty); Sprint Fidelis, 623 F.3d at 1206-07 (same); cf. Nelson v. State Farm Mut.

Auto. Ins. Co., 419 F.3d 1117, 1120-21 (10th Cir. 2005) (noting that the plaintiff

“made no suggestion of a proper accrual date at the trial-court level” in response

to the defendant’s statute-of-limitations affirmative defense). 2

      That’s not to say another plaintiff won’t ever be able to succeed where Ms.

Caplinger has failed. For example, we don’t question the possibility that buried

somewhere in the heap of federal law parallel provisions exist to save claims like

Ms. Caplinger’s. After all, the FDA’s medical device regulations alone cover 592

pages of eight-point type and the Supreme Court has suggested that in searching

for a parallel federal duty a plaintiff may scour them all as well as the statute

itself. See Lohr, 518 U.S. at 495. And lurking in there somewhere might be some

answer to the apparent conundrum of how a plaintiff might use state law to

require more label warnings that federal law seems to prohibit. But despite the


      2
         One might read some of these cases as suggesting that a plaintiff’s
complaint must anticipate the affirmative defense of preemption and identify
parallel federal requirements. See, e.g., Wolicki-Gables, 634 F.3d at 1301-03;
Sprint Fidelis, 623 F.3d at 1206-07. That far we do not go. After all, it is for
defendants to prove their affirmative defenses in their motions, not for plaintiffs
to disprove them in their complaints. See Jones, 549 U.S. 212-14; Bausch v.
Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010). But all the same it remains the
case that a defendant may win dismissal as a matter of law with an affirmative
defense if it can show that, without respect to any material dispute of fact, the law
compels that result — exactly what happened here. See, e.g., Jones, 549 U.S. at
215; Wright & Miller, supra, § 1357 (collecting cases).

                                          15
challenge of Medtronic’s motion to dismiss, Ms. Caplinger has never — in all her

voluminous briefs in the district court or this one — identified any legally viable

federal requirement that might parallel and thus permit her claims. Neither are

the courts under an obligation to perform that work for her, searching out theories

and authorities she has not presented for herself. Indeed, we are especially

hesitant to try that here, where Ms. Caplinger has been ably represented by

counsel and the effort to supplement their efforts would require us to venture into

a field in which so many others who’ve come before have struggled to find their

way and there exists so much risk of going astray. See, e.g., Aquila, Inc. v. C.W.

Mining, 545 F.3d 1258, 1268 (10th Cir. 2008). 3

      Not only do we acknowledge others might succeed where Ms. Caplinger

has failed. We also acknowledge that there’s always the possibility an antecedent

dispute of material fact will preclude a court from being able to render judgment

as a matter of law on an affirmative defense like preemption. In Bausch v.

Stryker Corp., 630 F.3d 546 (7th Cir. 2010), for example, the court found that the

      3
         Ms. Caplinger’s warranty claims, both express and implied, also fail
because they depend on conclusory allegations. The operative complaint contains
no well-pleaded facts suggesting, for example, what Medtronic expressly
promised her, how those promises related to the Infuse device, or how they
became part of the basis of the bargain. Likewise, the complaint doesn’t allege
any facts that would suggest any species of implied warranty claim. Regardless
whether Oklahoma or Missouri state law happens to apply to this case (a question
the parties debate but proves immaterial), Ms. Caplinger simply hasn’t alleged
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Okla. Stat. Ann. tit. 12A,
§§ 2-313 to -315; Mo. Ann. Stat. §§ 400.2-313 to -315.

                                         16
plaintiff lacked access to the certain confidential premarket approval documents

for the device in question. Id. at 561. According to the court, the plaintiff didn’t

and couldn’t know at the time of the motion to dismiss what federal requirements

applied to the device in question. And without knowing, as a factual matter, what

federal requirements did and didn’t apply to the device the court held it couldn’t

resolve the legal question whether the state torts the plaintiff wished to pursue did

or didn’t parallel those federal requirements. In other words, a material question

of fact (what federal requirements exist related to the device?) precluded the

ability to issue a definitive ruling on the legal question (do the plaintiff’s state

law claims parallel federal requirements?).

      But, once again, Ms. Caplinger has never suggested anything like that here.

She’s never argued that she lacks access to any relevant documents for the Infuse

device and she has never identified any other missing material fact essential to

analyzing the preemption question. She has not so much as cited Bausch to

suggest the preemption question presented in our case raises anything less than a

purely legal question. In these circumstances we can again hardly fault the

district court for granting judgment as a matter of law when no one has suggested

a material dispute of fact exists that might require otherwise. 4

      4
         Our colleague states that Ms. Caplinger’s efforts to identify a parallel
federal requirement have not proven “model[s] of clarity” but suggests that we
should still remand the case to allow Ms. Caplinger one more chance to crack
open the federal register and unearth some parallel requirement or perhaps amend
her complaint. See post at 7-8; id. at 14. Respectfully, however, Ms. Caplinger

                                           17
                                           *

      Still, that doesn’t come close to ending our encounter with this case. So far

we’ve hewed to the path the Supreme Court mapped out in Lohr, Riegel, and

Buckman, asking whether Ms. Caplinger’s state law claims seek to impose duties

that parallel federal duties but do not depend solely on federal law. Recognizing

the weakness of her position under the tests announced by the Supreme Court,

she now seeks to suggest they don’t much matter. Even if no parallel federal

requirements exist for her state tort claims, Ms. Caplinger argues that’s

immaterial and her tort claims should survive preemption anyway. As she sees it,

the fact that her suit concerns an off-label use is enough all by itself to insulate

all her claims from preemption. Her reasoning goes something like this: When

weighing whether a medical device is sufficiently safe to enter the market, the

FDA usually examines the use the manufacturer intends the device to be put — its

“on-label” use. See 21 U.S.C. §§ 360c(a)(2), 360e(d)(1)-(2). Because the

agency’s studies and safety assessments generally focus on the device’s intended

or on-label uses, she argues, it isn’t appropriate to preempt claims concerning off-


has already amended her complaint once and in this appeal she does not seek
another chance to do so. Indeed, she nowhere challenges the district court’s
ruling denying her motion to file a second amended complaint; instead, she
chooses to stand and fight on the basis of her existing pleadings. Neither do we
see a lawful basis for remanding the case for further proceedings on the present
pleadings. Ms. Caplinger has been repeatedly challenged to identify some federal
regulation or statute on the books that parallels her state law claims and she has
repeatedly failed to do so. Accordingly, Medtronic is now entitled to the
judgment it has long sought on its affirmative defense.

                                           18
label uses. Parallelism may be one way to avoid preemption, but in Ms.

Caplinger’s estimation attacking off-label uses should be another entirely separate

way around the problem. In not a single one of its many and involved encounters

with the MDA has the Supreme Court so much as hinted at this alternative path

around preemption. But Ms. Caplinger says its past obscurity shouldn’t stop us

from recognizing it now.

      This we decline to do. 5 Textually, § 360k(a) simply does not contain the

distinction Ms. Caplinger would have us draw between suits addressing on- and

off-label uses. The MDA says that a plaintiff may not invoke state law to impose

“any requirement” that “relates to the safety or effectiveness of [a] device” that is

“different from, or in addition to, any requirement applicable . . . to the device”

under the FDCA. 21 U.S.C. § 360k(a) (emphasis added). Nothing depends on

whether the plaintiff seeks to use state law to impose requirements for off-label

uses or on-label uses. Rather, by its terms, the statute preempts any effort to use

state law to impose a new requirement on a federally approved medical device.

      Neither was Congress oblivious to the potential pitfalls (and promises) of

off-label uses when it wrote such a broad preemption provision. Congress spoke

directly to off-label uses in 21 U.S.C. § 396. There legislators went out of their

way to protect the liberty of doctors and patients to use approved devices in any

      5
         Neither do we understand our colleague’s separate writing as taking a
different view. His difference of opinion appears to be confined to the question
whether a parallel federal requirement might exist to save this suit.

                                         19
manner they wish — including off-label — instructing that “[n]othing in this

chapter shall be construed to limit or interfere with the authority of a health care

practitioner to prescribe or administer any legally marketed device.” 21 U.S.C.

§ 396. Congress added this language aware that experiments with off-label uses

often prove vital to patients and wary about granting the federal government the

power to deny doctors and patients the freedom to use approved devices in any

way they think might help improve health or extend life. See Buckman, 531 U.S.

at 351 n.5. But in preserving the liberty of doctors and patients to use approved

devices however they wish, Congress also appeared to place a good deal of the

risk on them rather than on manufacturers. Knowing about (even encouraging)

off-label uses in § 396, Congress proceeded in § 360k(a) to preempt any state tort

suit challenging the safety of a federally approved device without qualification

about the manner of its use. Given that Congress well understood the difference

between on- and off-label uses and exhibited its facility with those terms in § 396,

the absence of any mention of them in § 360k(a) becomes all the harder to ignore,

a sort of dog that didn’t bark. See, e.g., Roberts v. Sea-Land Servs., Inc., 132 S.

Ct. 1350, 1357 n.5 (2012) (explaining that when Congress uses “different

language” in different parts of the same statute, we normally “assume[] different

meanings were intended” (quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 711

n.9 (2004)) (internal quotation mark omitted)).




                                          20
      At this point in the proceedings and recognizing the absence of any textual

authority for limiting § 360k(a)’s preemptive effect to challenges concerning on-

label uses, Ms. Caplinger offers yet another amendment to her position, even as

she continues to aim in the same direction. Now she says preemption should

occur only when a state requirement differs from or adds to a federal regulation

covering the “same subject.” And because there are no federal regulations on the

“subject” of off-label uses, she reasons, off-label claims should not be preempted.

      This theory faces a similar textual dead-end. Section 360k(a) doesn’t

preempt only those state safety requirements addressing the “same subject” as

federal requirements. Instead and again, the statute requires preemption

whenever state law is used to impose “any requirement . . . which relates to the

safety or effectiveness of the device.” To accommodate Ms. Caplinger’s view, a

serious revision would be required, mandating preemption only when the state

imposes “any requirement . . . which relates to the safety and effectiveness of the

device and concerns the same subject matter as a federal requirement.” We

discern nothing in the judicial power that might permit us to undertake such a

revamping of Congress’s handiwork.

      Not only does the statute lack Ms. Caplinger’s latest precondition to

preemption, it once again contains evidence suggesting that Congress knew how

to prescribe ones exactly like it when it wished. Section 360k(a) preempts any

state requirement that (1) adds to or differs from federal requirements and (2)

                                        21
relates either to (a) a device’s “safety or effectiveness” or (b) “any other matter

included in a [federal] requirement applicable to the device.” The category we’ve

labeled (b) is noteworthy because there a federal requirement concerning the

“same subject” as a state requirement may be a necessary precondition to

preemption. Meanwhile, none of this is true of the first category — what we’ve

labeled (a). That category specifies its preemptive reach plainly and broadly:

any state requirement that adds to federal requirements and that relates to the

safety or effectiveness of the device is preempted. No other qualification exists.

It seems pretty clear, then, that Congress knew not only how to impose a “same

subject” precondition to preemption but actually chose to do so in an adjacent

clause. In this light, its decision not to include a “same subject” precondition in

the clause under review seems all the more deliberate and difficult for a court to

disregard. See Roberts, 132 S. Ct. at 1357 n.5.

      Beyond these textual impediments, Ms. Caplinger’s theories face

precedential problems. Like Ms. Caplinger, the plaintiff in Riegel argued that a

medical device was poorly designed for the particular off-label use his doctor

made of it. The plaintiff in Riegel claimed, too, that the manufacturer failed to

provide sufficient warnings about off-label uses. Even so, the Court didn’t

hesitate to find all of his claims preempted. Once a device endures the premarket

approval process, Riegel held, any state safety requirement differing from or

adding to the body of federal regulations is preempted, even if that requirement


                                          22
comes in the guise of a general tort suit addressing only safety issues relating to

off-label uses. See 552 U.S. at 322-24. Indeed, the Court told us unequivocally

that “[s]tate tort law that requires a manufacturer’s [device] to be safer . . . than

the model the FDA has approved disrupts the federal scheme.” Id. at 325. And

the Court proceeded to dismiss the plaintiff’s design defect and failure to warn

claims addressing off-label uses. We fail to see how we might faithfully reach a

different view here.

      Our conclusion finds support in circuit precedent too. Several circuits have

already recognized that once a device survives premarket approval it’s immune

from state tort suits that seek to impose different or additional safety-related

duties like those alleged here. See, e.g., Stengel v. Medtronic, Inc., 704 F.3d

1224, 1233 (9th Cir. 2013) (en banc); Walker v. Medtronic, Inc., 670 F.3d 569,

577 (4th Cir. 2012); Hughes v. Bos. Scientific Corp., 631 F.3d 762, 768 (5th Cir.

2011); Wolicki-Gables, 634 F.3d at 1301; Howard v. Sulzer Orthopedics, Inc.,

382 F. App’x 436, 439-40 (6th Cir. 2010); Bausch, 630 F.3d at 552-53; Sprint

Fidelis, 623 F.3d at 1205; see also Helveston, supra, at 1111 (explaining that “the

MDA grants manufacturers of devices that have gone through the pre-market

approval process immunity from nearly all state law claims”). On the other side

of the ledger, Ms. Caplinger cites no circuit authority supporting any of her

various arguments for reversal.




                                          23
      Instead, she notes that the FDA recently submitted a legal brief in another

case that arguably endorses her view that § 360k(a) preempts only claims

concerning on-label uses and allows any claim concerning off-label uses to

proceed. See Brief for the United States as Amicus Curiae at 8-9, Medtronic, Inc.

v. Stengel, No. 12-1351 (U.S. 2014). But Ms. Caplinger neglects to mention that

the agency itself not long ago read the MDA preemption provision just as we

have, as preempting any claim that seeks to impose a state law duty that differs

from or adds to federal duties, whether those duties concern on- or off-label uses.

See Brief for the United States as Amicus Curiae Supporting Respondent at 8,

Riegel, 552 U.S. 312 (2008) (No. 06-179). Neither does the agency’s latest brief

mention — let alone seek to explain why it has deviated from — its prior

litigating position. And the FDA acknowledges candidly that its (current)

litigating position would require a court to reject “every [circuit] case since

Riegel” because none has suggested that § 360k(a)’s preemptive effect depends on

a dichotomy between on- and off-label uses. See Brief for the United States as

Amicus Curiae, Stengel, supra, at 15-16. Without any good reason to defer to the

FDA’s current position over its previous position — and the textual and

precedential acrobatics that would be required to land there — we decline the

attempt.

      Aside from statutory terms, structure, and precedent there remains the

question of statutory purpose. The business of hazarding a guess about the intent


                                         24
of a legislative body composed of more than 500 individuals, each with his or her

own interests and ends, always bears its risks. But as explored by the parties and

amicus, the legislative history suggests that to the extent Congress considered any

of the questions here it opted for the broadest available preemption provision in

circulation during the drafting process. Compare H.R. 11124, 94th Cong. § 2 (as

reported by H. Comm. on Interstate & Foreign Commerce, Feb. 29, 1976), with S.

510, 94th Cong. § 704 (as passed by Senate, April 17, 1975).

      It’s easy to imagine, too, why Congress adopted a preemption provision

that doesn’t distinguish between on- and off-label uses. Any additional state

duties on top of those imposed by federal law, even if nominally limited to off-

label uses, might check innovation, postpone access to life-saving devices, and

impose barriers to entry without sufficient offsetting safety gains. For example, a

state’s judgment that a device is unsafe for a particular off-label use could require

design changes that adversely affect the device’s safety for on-label uses.

Requiring manufacturers to comply with fifty states’ warning requirements

concerning off-label uses, on top of existing federal on-label warning

requirements, might introduce sufficient uncertainty and cost that manufacturers

would delay or abandon at least some number of life-saving innovations. See,

e.g., Sharkey, supra, at 361; Samuel Issacharoff & Catherine M. Sharkey,

Backdoor Federalization, 53 UCLA L. Rev. 1353, 1385-86 (2006); Catherine M.

Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo.


                                         25
Wash. L. Rev. 449, 483 (2008). Regulating any aspect of a device also raises the

possibility of “spillover effects” from rules that “benefit in-state residents” at the

expense of out-of-staters. Issacharoff & Sharkey, supra, at 1386-87. In short, we

can see a number of ways in which a lawsuit nominally limited to attacking an

off-label use might have knock-on effects for those seeking access to a device for

its on-label use. And the Supreme Court has explained that “the text of the

statute . . . suggests that the solicitude for those injured by FDA-approved

devices . . . was overcome in Congress’s estimation by solicitude for those who

would suffer without new medical devices if juries were allowed to apply the tort

law of 50 States to all innovations.” Riegel, 552 U.S. at 326.

      Not everyone may agree with how Congress balanced the competing

interests it faced in this sensitive and difficult area. We can surely imagine a

different statute embodying a different judgment. But strike a balance Congress

had to and did, and it is not for this court to revise it by beating a new path

around preemption nowhere authorized in the text of the statute and nowhere

recognized in any of the Supreme Court’s many forays into this field.

      Affirmed.




                                          26
13-6061, Caplinger v. Medtronic

LUCERO, J., concurring in part and dissenting in part.


       According to the majority, Patricia Caplinger cannot recover for harms, long

cognizable under state law, that flow directly from Medtronic’s alleged violations of

federal laws forbidding the introduction of misbranded or adulterated medical devices

into the market. This result is compelled neither by binding precedent nor by the plain

text and clear purpose of the Federal Food, Drug, and Cosmetic Act as amended by the

Medical Devices Amendments of 1976 (“MDA”), which were enacted to promote the

safety of medical devices through honest labeling and promotion.1

       Federalism concerns caution against rushing to preempt state law. See The

Federalist No. 33, at 206-08 (Alexander Hamilton) (J. Cooke ed. 1961). Those concerns

are heightened when, as here, the district court misapprehended the scope of relevant law.

Although I agree with most of the majority’s preemption analysis, I write separately to

express these concerns, discuss how the district court misapprehended law, and explain

why some of Caplinger’s claims are at least plausibly parallel and should survive a

motion to dismiss at this early stage of the litigation.



       1
         Ensuring the truthful labeling and promotion of medical devices has been a
federal priority for decades. See S. Rep. No. 94-33, at 17 (1976), reprinted in 1976
U.S.C.C.A.N. 1070, 1086 (stating that “[t]he Committee believes that the Secretary of
Health, Education, and Welfare should have authority to regulate prescription medical
device advertising”); id. at 2-3, reprinted in 1976 U.S.C.C.A.N. at 1072 (explaining that
in the Federal Food, Drug, and Cosmetic Act of 1938, “the major concern with these
devices was assuring truthful labeling”).
                                             I

       Caplinger alleges that Medtronic promoted and marketed uses of its Infuse product

to Caplinger and her physicians that were not approved by the Food and Drug

Administration (“FDA”). This “off-label” promotion allegedly induced Caplinger and

her physicians to implant Infuse in Caplinger’s spine using a technique that had never

been evaluated by the FDA.2 A Medtronic representative, acting in the course of her

employment, actively provided information regarding Infuse as it applied to Caplinger’s

particular surgery and was present during her surgery. Caplinger’s complaint details

extensive evidence suggesting that Medtronic intentionally introduced Infuse into the

market for misbranded or adulterated uses, including the specific off-label use that

harmed Caplinger. This includes evidence that Medtronic improperly bribed physicians,

paid “kickbacks” to promote these off-label uses, and funded misleading scientific studies

that misrepresented the safety of these uses.3 Caplinger alleges that Medtronic’s conduct

violated the MDA, FDA regulations, and state tort law.4


       2
        In considering Medtronic’s motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), we must assume that Caplinger’s factual allegations are true. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
       3
        Caplinger also proffers well-substantiated allegations that Medtronic was
subjected to a bipartisan Senate investigation for its marketing practices.
       4
         The parties dispute which state law applies. Caplinger argues that determining
the relevant state law should not affect the preemption analysis. This is incorrect. The
specific requirements and duties imposed by state law are so central to the preemption
analysis that this issue on its own merits a remand. See Bates v. Dow Agrosciences LLC,
544 U.S. 431, 453 & n.27 (2005). There is some evidence suggesting that the district
court applied Oklahoma law, and in illustrating why I would conclude that some of
Caplinger’s claims are not preempted at this stage of the litigation, I will discuss the
                                            -2-
                                             II

       After a device has been submitted for Premarket Approval (“PMA”), the FDA

carefully studies its safety “under the conditions of use prescribed, recommended, or

suggested in the proposed labeling” by the manufacturer. 21 U.S.C. § 360e(d)(2)(A). A

device can be safe for one use but unsafe for many others. For instance, an artificial heart

valve safe for use in adults may not be safe for pediatric use. Immunizing from liability a

medical device company that sells or markets a device for untested, unapproved, and

potentially unsafe uses would completely subvert the purpose of the PMA process and

provide perverse incentives for device companies as they seek federal approval.

       The FDA guards against this danger by forbidding manufacturers from introducing

“misbranded” or “adulterated” devices into the marketplace. §§ 351, 352; see also 21

C.F.R. § 814.80 (forbidding devices to be “manufactured, packaged, stored, labeled,

distributed, or advertised in a manner that is inconsistent with any conditions to approval

specified in the PMA approval order for the device”). An otherwise approved device is

misbranded if, among other things, “its labeling is false or misleading in any particular,”

its label does not bear “adequate directions for use,” or the manufacturer of a restricted

device uses “false or misleading advertising.” 21 U.S.C. § 352. The FDA has sensibly

concluded that a manufacturer who introduces a medical device into the market for uses

not contemplated in the PMA process violates the prohibition on selling devices with

false, misleading, and/or inadequate labeling. See 21 C.F.R. §§ 801.5, 801.109.

elements of Oklahoma tort law. I express no opinion regarding the proper resolution of
this choice of law dispute or whether its resolution would change the result.

                                             -3-
Specifically, § 801.5 explains that “[a]dequate directions for use means directions under

which the layman can use a device safely and for the purposes for which it is intended”

Id. (emphasis added). Another regulation, § 801.4, explains that references to intended

use in § 801.5 “refer to the objective intent of the persons legally responsible for the

labeling of devices” and are “determined by such persons’ expressions or may be shown

by the circumstances surrounding the distribution of the article.” § 801.4. The regulation

further provides:

       This objective intent may, for example, be shown by labeling claims, advertising
       matter, or oral or written statements by such persons or their representatives. It
       may be shown by the circumstances that the article is, with the knowledge of such
       persons or their representatives, offered and used for a purpose for which it is
       neither labeled nor advertised.

Id. For prescription devices, such as Infuse, the labeling must include adequate

information “under which practitioners licensed by law to administer the device can use

the device safely and for the purpose for which it is intended, including all purposes for

which it is advertised or represented.” § 801.109(c) (emphasis added).

        If a manufacturer wishes to sell a device for an intended use not analyzed in the

PMA process, it must generally “submit a PMA supplement for review and approval by

FDA.” § 814.39. A device sold in violation of that requirement is considered

“adulterated.” 21 U.S.C. § 351.

       These prohibitions against misbranding or adulteration do not limit the ability of

doctors to exercise professional judgment in their use of approved devices. As the

majority notes, a medical practitioner does not violate federal law by using a medical

device off-label. See § 396. However, practitioners who use devices off-label are not

                                             -4-
excused from their legal responsibilities. Traditional state tort remedies such as

negligence and malpractice ensure that those practitioners employ off-label devices in

line with the professional standard of care.

       Unlike the patient protection achieved by practitioner liability for off-label use, the

result of allowing injured individuals to pursue state tort remedies against medical device

manufacturers who legally sold and marketed FDA-approved devices would be an undue

burden on those manufacturers. To avoid federal liability, each modification made to a

device in order to forestall such a state tort claim would need to comply with the exacting

PMA process. See Buckman Co. v. Plaintiffs’ Legal Comm., 531 U.S. 341, 344-45

(2001) (explaining that “the PMA process is ordinarily quite time consuming because the

FDA’s review requires an ‘average of 1,200 hours [for] each submission’” (quoting

Medtronic, Inc. v. Lohr, 518 U.S. 470, 477 (1996))). Congress’ solution to this problem

was enacting § 360k(a). Pursuant to this provision, a medical device manufacturer who

complies with the PMA process and the FDA’s marketing regulations cannot be held

liable under state law for injuries resulting from a physician’s off-label use of a medical

device. Riegel v. Medtronic, Inc., 552 U.S. 312, 330 (2008) (holding state law tort

claims preempted when plaintiff asserted “that Medtronic’s device violated state tort law

notwithstanding compliance with the relevant federal requirements” (emphasis added));

Walker v. Medtronic, Inc., 670 F.3d 569, 581 (4th Cir. 2012) (explaining that state law

tort claims stemming from the failure of “devices that were designed, manufactured, and

sold in accordance with the terms of their premarket approval were preempted”

(emphasis added)).

                                               -5-
       In contrast, when a plaintiff alleges harms predicated on a manufacturer’s

violation of both FDA regulations and “parallel” state law duties, the enforcement of state

tort law complements the federal scheme. See Riegel, 552 U.S. at 330; see also Lohr,

518 U.S. at 513 (O’Connor, J., concurring in part and dissenting in part) (“[T]he threat of

a damages remedy will give manufacturers an additional cause to comply . . . . Section

360k does not preclude States from imposing different or additional remedies, but only

different or additional requirements.”). This is a form of “cooperative federalism” that

invites, but does not require, states to deploy their traditional police powers to provide

remedies that reinforce federal standards. See New York v. United States, 505 U.S. 144,

167-68 (1992) (discussing cooperative federalism); see generally Jessica Bulman-Pozen

& Heather K. Gerken, Uncooperative Federalism, 118 Yale L.J. 1256 (2009) (explaining

how cooperative federalism structures the relationship between states and the federal

government). With the MDA, Congress has provided a powerful example of how our

federal system can work to efficiently implement national regulations while

simultaneously respecting the role of states in that system.

       Thus, § 360(k)(a) does not expressly preempt the state law claims of a plaintiff

like Caplinger who alleges that: (1) the medical device that injured her was misbranded

or adulterated in violation of federal law; (2) the violation of federal law that caused the

product to become misbranded or adulterated is also a violation of state law; and (3) her

use of the device resulted in harms with parallel state law remedies. See Bausch v.

Stryker Corp., 630 F.3d 546, 553 (7th Cir. 2010) (concluding that “section 360k provides



                                             -6-
immunity for manufacturers of new Class III medical devices to the extent that they

comply with federal law, but it does not protect them if they have violated federal law”).

       To hold otherwise would “have the perverse effect of granting complete

immunity” from state law torts stemming from misbranding and adulteration practices

forbidden by federal law and regulation “to an entire industry that, in the judgment of

Congress, needed more stringent regulation in order to provide for the safety and

effectiveness of medical devices intended for human use.” Lohr, 518 U.S. at 487

(quotation omitted). Moreover, allowing medical device companies to escape state tort

liability in such a situation would improperly shift the risk of liability from device

companies that intentionally mislead physicians to the physicians who rely upon that

misleading advice when deciding to utilize a device off-label. Congress sensibly refused

to establish such a dystopic regime.

                                             III

       I suspect that the majority would not disagree with the above preemption analysis.

Our disagreement in this case stems primarily from our varying characterization of

Caplinger’s complaint and her appellate briefing. In my view, the majority holds

Caplinger’s complaint and appellate briefing to an excessively stringent standard that

places the onus on her to affirmatively demonstrate that state law claims are parallel to

federal requirements. The majority does this by minimizing the scope of her state tort

claims and their relationship with the relevant federal laws. I admit that Caplinger’s

briefing on the topic, especially before the district court, was not a model of clarity, but

the presence of parallel state claims in Caplinger’s complaint is certainly more apparent

                                             -7-
than in the operative complaint in Lohr, where the Supreme Court allowed a suit to

proceed on remand. See 518 U.S. at 495 (allowing the Lohrs’ suit against Medtronic to

proceed despite the fact that “the precise contours of their theory of recovery have not yet

been defined” because “it is clear that the Lohrs’ allegations may include claims that

Medtronic has, to the extent that they exist, violated FDA regulations”). Moreover,

because the district court based its dismissal on a mistaken understanding of the MDA

and relevant FDA regulations, and failed to compare the elements of state tort law with

the federal requirements, Caplinger should be provided an opportunity to make her case

with the regulatory regime properly understood.

                                             A

       As the majority explains, federal law “does not prevent a State from providing a

damages remedy for claims premised on a violation of FDA regulations.” Riegel, 552

U.S. at 330. Such a claim seeks a “parallel” remedy and is not expressly preempted by

§ 360k(a) if it does not impose any requirements with respect to safety or effectiveness

that are “different from, or in addition to, federal requirements.” Id. at 328 (quotation

and citation omitted). Preemption is an affirmative defense, and the defendant bears the

burden of proof. See Emerson v. Kan. City S. Ry. Co., 503 F.3d 1126, 1133-34 (10th

Cir. 2007); see also De Buono v. NYSA-ILA Med. & Clinical Servs. Fund, 520 U.S. 806,

814 (1997); Stengel v. Medtronic Inc., 704 F.3d 1224, 1227 (9th Cir. 2013) (en banc)

(explaining that “[p]arties seeking to invalidate a state law based on preemption bear the

considerable burden of overcoming the starting presumption that Congress does not

intend to supplant state law” (quotation omitted)). Caplinger has properly alleged facts in

                                             -8-
her complaint “demonstrating the presence of the elements of a parallel claim” and she

has pointed “to specific PMA requirements that have been violated.” Wolicki-Gables v.

Arrow Int’l, Inc., 634 F.3d 1296, 1302 (11th Cir. 2011). To establish that Caplinger’s

claims are expressly preempted, Medtronic must affirmatively show that her state tort

claims are not “parallel” to the alleged federal violation. And to judge whether a

plaintiff’s state law claims are genuinely parallel, a district court must consider the

elements “to determine whether these claims impose requirements that differ from or are

in addition to federal requirements.” Hughes v. Boston Scientific Corp., 631 F.3d 762,

768 (5th Cir. 2011).

       Crucially, federal law and state law remedies need not be identical in order to be

parallel and thus avoid express preemption. See Lohr, 518 U.S. at 495; see also Bates,

544 U.S. 431, 454 (2005) (holding that “to survive pre-emption, the state-law

requirement need not be phrased in the identical language as its corresponding [statutory]

requirement; it would be surprising if a common-law requirement used the same

phraseology as [the statute]”). As the Court explained in Lohr, “additional elements of

the state-law cause of action” requiring plaintiffs to show that “violations were the result

of negligent conduct, or that they created an unreasonable hazard for users of the product

. . . would make the state requirements narrower, not broader, than the federal

requirement.” 518 U.S. at 494. For example, in the context of misbranded or adulterated

medical devices, a state may permissibly determine that it only wishes to provide private

remedies to individuals who can demonstrate that they relied upon false statements or



                                             -9-
omissions about the safety of the misbranded products, or that the misbranding or

adulteration created an unreasonable hazard for its citizens.

                                             B

       The majority does not reach the question of implied preemption, because it holds

that all of Caplinger’s claims were either insufficiently pled or expressly preempted. The

district court did reach the question, incorrectly holding that several of Caplinger’s claims

relating to Medtronic’s “off-label marketing” would be impliedly preempted. Some

otherwise parallel state claims are impliedly preempted because Congress has determined

that actions to enforce FDA requirements related to medical devices “shall be by and in

the name of the United States.” § 337(a). This language has been interpreted by the

Supreme Court to impliedly preempt claims that “exist solely by virtue” of federal

requirements. Buckman, 531 U.S. at 353. This language does not, however, preempt

claims that would traditionally sound in state tort law, such as Lohr’s “common-law

negligence action against the manufacturer of an allegedly defective pacemaker lead.”

Buckman, 531 U.S. at 352.

       The contours of implied preemption are eloquently explained by the Sixth Circuit

in Loreto v. Procter & Gamble Co., 515 F. App’x 576 (6th Cir. 2013) (unpublished).

Loreto held that Buckman preempted a claim alleging that Procter & Gamble failed to tell

consumers that its products were “illegal” when that claim’s theory of liability depended

“entirely upon an FDCA [Federal Food, Drug, and Cosmetic Act] violation—i.e., the

only reason Procter & Gamble’s products were allegedly ‘illegal’ was because they failed

to comply with FDCA labeling requirements.” 515 F. App’x at 579. But the court

                                            -10-
allowed a claim to proceed alleging that Procter & Gamble made false or misleading

statements regarding the same product, because the false-or-misleading “theory relies

solely on traditional state tort law predating the FDCA, and would exist in the absence of

the Act.” Id. at 580; see also Hughes, 631 F.3d at 775 (holding that state tort law failure-

to-warn claim was not impliedly preempted); Bausch, 630 F.3d at 557 (holding that tort

law claims based on manufacturing defects were not impliedly preempted).

       As discussed below, it is clear that at least some of Caplinger’s claims are not

dependent entirely upon a violation of federal law. Instead, they are grounded in

traditional state-law duties that predate the MDA and would be cognizable even if the

MDA did not exist. These claims are not impliedly preempted.

                                             IV

       According to the district court, Caplinger’s state law claims were either not

genuinely parallel to the federal laws relating to off-label promotion or were impliedly

preempted because they were entirely based upon those laws and “even the concept of

‘off-label use’ is a creature of the FDCA, is defined by the FDCA, and is not part of

Oklahoma substantive law.” Caplinger v. Medtronic, Inc., 921 F. Supp. 2d 1206, 1219-

20 (W.D. Okla. 2013). This misstates the scope of federal-law violations alleged in

Caplinger’s complaint, artificially narrowing their grounds. Federal regulations prohibit

the promotion of off-label uses, which might itself form the basis of an appropriately

parallel state law claim. But that act of forbidden promotion does not capture the extent

of Medtronic’s alleged federal violations, or the state tort claims Caplinger specifically

raised in her complaint. Instead, Medtronic’s allegedly illegal promotion of Infuse,

                                            -11-
including Medtronic’s advertising and oral and written statements made by its

representatives, is properly viewed as evidence that Infuse was misbranded and/or

adulterated in violation of the law. See United States v. Caronia, 703 F.3d 149, 154 (2d

Cir. 2012) (explaining that misbranding may be proven by, “among other evidence, oral

or written statements by [persons legally responsible for the labeling of drugs] or their

representatives and the circumstances that the article is, with the knowledge of such

persons or their representatives, offered and used for a purpose for which it is neither

labeled nor advertised” (quotation omitted)); see also 21 C.F.R. § 801.4 (explaining that

“intended use” of a device may be shown “by the circumstances that the article is . . .

offered and used for a purpose for which it is neither labeled nor advertised”). Caplinger

explicitly alleges violations of 21 U.S.C. § 331, which prohibits “[t]he introduction or

delivery for introduction into interstate commerce of any food, drug, device, tobacco

product, or cosmetic that is adulterated or misbranded.” Id. As a result, if Caplinger can

prove that Infuse was misbranded or adulterated, her state law claims are not preempted

so long as the federal violation that caused the devices to be misbranded is also a

violation of some state law that does not impose requirements “different from, or in

addition to” the federal prohibitions concerning misbranded or adulterated devices.

       Applying this analysis, I would hold that Caplinger’s claims based on failure to

warn and negligence have been sufficiently pled to avoid preemption at this stage of the

litigation. For each of these claims, Caplinger alleges that exactly the same conduct that

violated federal device requirements also violated state law.



                                            -12-
       Although Caplinger’s claims could end up being preempted as the case proceeds,

the burden of establishing preemption at this stage falls upon Medtronic, and in my view

it has not met that burden.

                                              A

       As a preliminary matter, I agree with the majority that Caplinger’s complaint

currently fails to state her fraud claims with the particularity required by Fed. R. Civ. P.

9(b). I also agree that her warranty claim was not sufficiently pled. However, these

issues are closer than the majority concludes. Federal law explicitly forbids medical

device manufacturers from engaging in false or misleading advertising. See §§ 331(a),

352(q)(1). With this in mind, and as the majority acknowledges, adequately pled state-

law fraud claims bottomed on a device manufacturer’s false or misleading advertising

may escape preemption. Moreover, an adequately pled warranty claim should easily

escape preemption. As the court in Houston v. Medtronic, Inc., 957 F. Supp. 2d 1166

(C.D. Cal. 2013), explained:

       [F]ederal law already prohibits false or misleading off-label promotion.
       Therefore, to the extent that Plaintiff seeks to impose liability on
       Defendants for voluntarily making misleading warranties outside the label,
       Plaintiff is not imposing any requirement different from or additional to
       what federal law already requires. In other words, to avoid state law
       liability on this claim, Defendants need only to refrain from making
       misleading warranties, which adds no burden beyond what federal law
       already imposes. Nor is the express warranty claim impliedly preempted
       under Buckman, as a claim for express breach of warranty finds its origin in
       traditional state law that predates the FDCA.

Id. at 1180-81. This conclusion is consistent with the developing consensus regarding the

scope of preemption in this context. See Beavers-Gabriel v. Medtronic, Inc., 15 F. Supp.


                                             -13-
3d 1021 (D. Haw. 2014) (holding that express warranty claim survives preemption);

Schouest v. Medtronic, Inc., 13 F. Supp. 3d. 692, 707 (S.D. Tex. 2014) (same); Arvizu v.

Medtronic Inc., 41 F. Supp. 3d 783, 793 (D. Ariz. 2014) (explaining that “[s]everal courts

have found that claims for breach of express warranty are neither expressly nor impliedly

preempted in the context of off-label promotion”); see also Scovil v. Medtronic Inc., No.

2:14-CV-00213-APG, 2015 WL 880614, at *12 (D. Nev. Mar. 2, 2015) (unpublished)

(similar); Wright v. Medtronic, Inc., No. 1:13-CV-716, 2015 WL 328596, at *15 (W.D.

Mich. Jan. 23, 2015) (unpublished) (similar); Arthur v. Medtronic, Inc., No. 4:14-CV-52

(CEJ), 2014 WL 3894365, at *8 (E.D. Mo. Aug. 11, 2014) (unpublished) (similar).

       The district court denied Caplinger’s motion to reconsider or, in the alternative, for

leave to amend because it concluded many of her claims were necessarily preempted.

Remand for the district court to apply a proper understanding of preemption would allow

Caplinger to amend her complaint and possibly state viable fraud and warranty claims.

See Fed. R. Civ. P. 15; Grossman v. Novell, Inc., 120 F.3d 1112, 1126 (10th Cir. 1997)

(holding that it is an abuse of discretion for a district court to refuse leave to amend if the

stated reasons are “incorrect as a matter of law”).

                                               B

       In contrast, I would hold that Caplinger’s failure-to-warn and negligence claims

are not clearly preempted at this stage of the litigation and are also plausibly stated.

Caplinger contends that Medtronic had a state law duty to warn both the plaintiff and her

physician about the dangers associated with off-label use of Infuse. The district court

concluded that this claim was expressly or impliedly preempted. To the extent that her

                                             -14-
claim is predicated on a general failure to warn about off-label uses or asserts a state-

imposed duty to include different or additional labeling, I agree with the majority and the

district court that it is preempted by § 360k(a) or Buckman.

       However, in my judgment, Caplinger may be advancing a more specific failure-to-

warn claim that survives preemption. A medical device must contain directions that are

adequate for its intended use. See 21 C.F.R. §§ 801.5, 801.109. A device’s “intended

use” is determined by “the objective intent of the persons legally responsible for the

labeling of devices.” § 801.4. Successful traversal of the PMA process means that the

FDA has conclusively determined that a device is adequately labeled with respect to the

intended use for which it was approved. See 21 U.S.C. § 360c(a)(1)(C)(ii)(II),

360c(a)(2)(B). But in her complaint, Caplinger incorporated allegations, supported by

facts, that Medtronic misbranded Infuse in violation of federal law because it sold Infuse

for an intended use not approved by the FDA. This would render its labeling no longer

necessarily “adequate” under federal law. See 21 C.F.R. § 801.109(c). Caplinger’s

assertions relating to “advertising and oral and written representations to her, her doctor,

and others” (Majority Op. 13), which the majority seems to read as irrelevant to the

question at hand, likely have the purpose of demonstrating the existence of improper

“purposes for which [Infuse] is intended.” § 801.5.

       Caplinger also alleged that even as it promoted Infuse in violation of those

requirements, Medtronic failed to include adequate warnings and directions for the

misbranded product that it was promoting. Other courts have imagined just this scenario



                                            -15-
as the type of “narrow failure-to-warn claim that would escape preemption.” Riley v.

Cordis Corp., 625 F. Supp. 2d 769, 783 (D. Minn. 2009).

       In Oklahoma, the elements of a product liability failure-to-warn claim are: (1)

“the product was the cause of the injury”; (2) “the defect existed in the product, if the

action is against the manufacturer, at the time the product left the manufacturer’s

possession and control”; and (3) the defect “made the article unreasonably dangerous.”

Kirkland v. Gen. Motors Corp., 521 P.2d 1353, 1363 (Okla. 1974). That defect “can

stem from either a dangerous design or an inadequate warning about the product’s

dangers.” Braswell v. Cincinnati Inc., 731 F.3d 1081, 1085 (10th Cir. 2013) (applying

Oklahoma law); see also Tansy v. Dacomed Corp., 890 P.2d 881, 886 (Okla. 1994)

(observing that “inadequate warnings” can render a product defective). Like federal

medical device law, Oklahoma law considers an object’s intended use when determining

if a warning is sufficient to avoid making the product unreasonably dangerous. See

Smith v. U.S. Gypsum Co., 612 P.2d 251, 256 (Okla. 1980); Kirkland, 521 P.2d at 1366

(holding that “[i]f the plaintiff is using the product for some purpose for which it was not

intended and is consequently injured, he should not recover”). Moreover, like federal

law, Oklahoma law specifically extends protection from defective design claims,

including failure-to-warn claims, when “the product is properly manufactured and

contains adequate warnings.” Tansy, 890 P.2d at 886. The additional Oklahoma

requirements that a plaintiff show injury and show that any warning was inadequate when

the product “left the manufacturer’s possession and control” are exactly the kind of

“narrower” conditions that the Lohr court held were not preempted.

                                            -16-
       Comparing the relevant elements of federal and Oklahoma law makes it clear that

Oklahoma imposes no requirements that are “different from, or in addition to” federal

requirements. Cf. Riegel, 552 U.S. at 330. The district court incorrectly determined that

this claim would be preempted because it would “permit a finding that defendants were

required to provide warnings above and beyond those on the Infuse Device’s label and

accompanying the device.” Caplinger, 921 F. Supp. 2d at 1221. This determination

misstates the elements of Oklahoma law. Nothing in Oklahoma failure-to-warn law

requires that Medtronic provide additional warnings or labeling in order to escape state

tort liability. Once the specific elements of state law are apprehended, it becomes clear

that Oklahoma is merely providing a mechanism for recovery if Medtronic violates

federal law by introducing Infuse for an adulterated or misbranded use and the warnings

accompanying Infuse are inadequate for that adulterated or misbranded use. The state

duty, like the federal duty, requires that Medtronic provide adequate directions for use. It

does not attach “liability to statements on the label that do not produce liability under

[federal law].” See Bates, 544 U.S. at 456 (Thomas, J., concurring in part and dissenting

in part). Permitting recovery would properly hold Medtronic accountable for its alleged

violations of state and federal law. To hold otherwise would allow Medtronic to shift

liability for its illegal misbranding and adulteration to patients and physicians and provide

a strong disincentive for Medtronic to seek supplemental FDA approval when the

intended use of a device changes.

       Because Caplinger’s failure-to-warn claim is at least arguably parallel to her claim

that Medtronic’s misbranded device failed to contain adequate directions for its intended

                                            -17-
use, I would hold that it is not preempted at this juncture. Cf. Alton v. Medtronic, Inc.,

970 F. Supp. 2d 1069, 1101 (D. Or. 2013) (holding that plaintiff’s similar failure-to-warn

claim against Medtronic regarding misbranding of Infuse was not preempted).

       Caplinger also alleged claims sounding in negligence and negligent

misrepresentation. In response to a certified question from our Circuit, the Oklahoma

Supreme Court has explicitly acknowledged “the distinction between attempting to

enforce a federal regulation and allowing a parallel claim for negligence per se bottomed

on violation of the regulation.” It held that Oklahoma negligence law provides a

preexisting remedy for many of the harms caused by “adulterated” medical devices.

Howard v. Zimmer, Inc., 299 P.3d 463, 470-74 (Okla. 2013). The remedy provided is

not merely an enforcement action based on the violation of a federal regulation, which

would be preempted by Buckman. Id. Caplinger claims that Medtronic provided untrue

or misleading information about the safety and efficacy of the particular off-label use of

Infuse that Medtronic allegedly promoted. Such conduct is a clear violation of federal

law forbidding adulteration and misbranding, including 21 U.S.C. § 352 and 21 C.F.R. §

814.80. To the extent that Caplinger’s negligence and negligent misrepresentation claims

parallel these requirements, and her pleadings suggest they well might, those claims

should not be preempted.

                                             V

       Although I would hold that several of Caplinger’s claims are not preempted at this

early stage of the litigation, and would remand the remaining claims with instructions to

permit amendment, I would also echo the Sixth Circuit in reminding Caplinger that over

                                            -18-
the course of her lawsuit, the “arguments she makes, the proofs she offers, and the

evidence she submits are all subject to limitation by preemption principles.” Fulgenzi v.

PLIVA, Inc., 711 F.3d 578, 588 (6th Cir. 2013). My disagreement with the majority

opinion does not turn on the substance of federal preemption law. Instead, our

disagreement turns on our respective characterization of Caplinger’s pleadings and

understanding of the proper burden at this stage of the litigation, as described by the

Supreme Court in cases such as Lohr and Bates. I suspect that the majority would say

that I am “trying out arguments and searching out legal theories [Caplinger] has not

presented for herself” (Majority Op. 16). However, in light of the important federalism

concerns at the heart of this case, the district court’s misapprehension of relevant federal

law, and its failure to examine the specific elements of state tort law at issue, I would

remand for the district court to revisit its analysis with a proper understanding of this

regulatory regime.

       Ultimately, Caplinger’s allegations need not be conclusive at this stage of the

litigation. They need only state a plausible claim for relief. Twombly, 550 U.S. at 556.

Although I disagree with the majority’s interpretation of Caplinger’s complaint, the text

of the majority’s opinion properly advises that a future plaintiff alleging similar harms

can avoid preemption by carefully explicating the parallels between the alleged federal

violations and state tort remedies.




                                             -19-
