Man unsure of the safety of his medicine

Breaking news and expert analysis on legal and compliance issues

[Back To Home][Back To Archives]

From Products Liability Law Daily, February 9, 2018

No preemption in defective defibrillator lawsuit

By Dietrich Knauth

A lawsuit over a LifeVest® medical device that allegedly failed to protect against heart attacks as promised was revived by the U.S. Court of Appeals for the Eleventh Circuit, which found that a lower court had improperly dismissed claims as preempted by an FDA determination that the medical device was safe. In reversing, the appellate panel found that the claims made it through the "narrow" path between express and implied preemption under the Medical Devices Amendments of 1976 (MDA) (Godelia v. Zoll Services, Inc., February 8, 2018, Martin, B.).

A patient suffered a fatal cardiac arrest while wearing a LifeVest, and her estate sued the device manufacturer—Zoll Services, LLC—alleging strict products liability, negligence, fraudulent misrepresentation, fraudulent marketing and promotion, breach of express warranty, negligent misrepresentation, and negligent infliction of emotional distress. The LifeVest is an external defibrillator designed to be worn by patients at risk of sudden cardiac arrest, and is intended to prevent heart attacks by administering a treatment shock when it detects dangerous heartbeat patterns. The U.S. Food and Drug Administration approved LifeVest for sale in 2001, and classified it as a Class III medical device, which is the highest risk category.

The district court previously granted Zoll’s motion to dismiss the suit, finding that the claims were expressly preempted by federal law governing medical devices, notably the MDA [see Products Liability Law Daily’s January 19, 2017 analysis]. The district court found that the claims were premised on the LifeVest being defective, which was at odds with the FDA’s determination that LifeVest was safe.

Reversal. The Eleventh Circuit, on appeal, reversed that ruling, instead finding that the patient’s claims made it through the "narrow" path between express and implied pre-emption under the MDA. The patient did not challenge the FDA’s finding that the device was safe, avoiding express preemption, and did not base claims only on Zoll’s alleged deviance from the FDA-approved manufacture of its devices, avoiding implied preemption. Instead, the appellate court noted, the patient alleged that the LifeVest’s defect was the result of a deviation from approved practices, as shown by an FDA warning letter sent to Zoll after the patient’s death, and that the deviation resulted in actual harm to the patient. The appeals court noted that the district court’s reasoning relied on a previous district court ruling that was later overturned by the Eleventh Circuit.

The Eleventh Circuit also rejected Zoll’s argument that the patient did not plead sufficient detail in the complaint, finding that the patient pleaded a sufficiently plausible claim, and did not need to pinpoint the precise defect that caused the LifeVest malfunction before proceeding with discovery.

The case is No. 17-10736.

Attorneys: Jermaine Lee (Wallen Hernandez Lee Martinez, LLP) for Dennis Godelia. Jordan Scott Cohen (Wicker Smith O'Hara McCoy & Ford, PA) for Zoll Services, LLC.

Companies: Zoll Services, LLC

MainStory: TopStory PreemptionNews MedicalDevicesNews AlabamaNews FloridaNews GeorgiaNews

Back to Top

Products Liability Law Daily

Introducing Wolters Kluwer Products Liability Law Daily — a daily reporting service created by attorneys, for attorneys — providing same-day coverage of breaking news, court decisions, legislation, and regulatory activity.


A complete daily report of the news that affects your world

  • View full summaries of federal and state court decisions.
  • Access full text of legislative and regulatory developments.
  • Customize your daily email by topic and/or jurisdiction.
  • Search archives for stories of interest.

Not just news — the right news

  • Get expert analysis written by subject matter specialists—created by attorneys for attorneys.
  • Track law firms and organizations in the headlines with our new “Who’s in the News” feature.
  • Promote your firm with our new reprint policy.

24/7 access for a 24/7 world

  • Forward information with special copyright permissions, encouraging collaboration between counsel and colleagues.
  • Save time with mobile apps for your BlackBerry, iPhone, iPad, Android, or Kindle.
  • Access all links from any mobile device without being prompted for user name and password.