Negligence : MMPA – Preemption –  Contraceptive Device

Where a plaintiff, who was injured by the insertion of a contraceptive device, challenged the dismissal of claims brought against the device manufacture, the dismissal of the plaintiff’s claims under the Merchandising Practices Act and of fraudulent and negligent misrepresentation, breach of express warranty, breach of implied warranty of merchantability and res ipsa loquitur is affirmed as preempted by the federal Medical Device Amendment of 1976; her failure to warn claim regarding off-label use did not state a cause of action and a negligent training claim was preempted in part but not to the extent that it alleged the defendant failed to use reasonable care when training physicians in a manner other than that approved by the FDA, and the judgment is reversed and remanded for further proceedings on the plaintiff’s claims of negligence per se, manufacturing defect, civil conspiracy and negligence in supplying a product for use claims since these were not preempted or preempted only to a certain extent.

Judgment is affirmed in part; reversed and remanded in part.

Williams v. Bayer Corp. (MLW No. 71233/Case No. WD80238 – 28 pages) (Missouri Court of Appeals, Western District, Ardini Jr., J.) Appealed from circuit court, Boone County, Carpenter, J. (Christopher W. Dysart for appellant) (Erika L. Maley for respondent).

Read the full text of this opinion. (PDF)