Jessen v. Mentor Corp.
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Filed 2/6/08 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN DAVID JESSEN, Plaintiff and Appellant, B191278 (Los Angeles County Super. Ct. No. SC083187) v. MENTOR CORPORATION, Defendant and Respondent. ORDER MODIFYING OPINION AND DENYING REHEARING (NO CHANGE IN JUDGMENT) THE COURT: It is ordered that the opinion filed herein on January 16, 2008 be modified as follows: On page 11, the text of footnote 11 is deleted and the following text is inserted in its place: 11 Jessen incorrectly asserts Mentor s motion for summary judgment and separate statement of undisputed facts failed to address the breach of warranty claim: The moving papers clearly requested summary judgment as to all causes of action based upon federal preemption. Also without merit is Jessen s argument that, even if federal preemption applies to his negligence and strict liability claims, it does not bar his breach of warranty claim because the exception to preemption in 21 C.F.R. § 808.1(d)(1) provides the Uniform Commercial Code (warranty of fitness) as an example of [s]tate or local requirements of general applicability where the purpose of the requirement relates . . . to other products in addition to devices. Whatever the reach of this exception to the general rule of preemption, implied warranty claims premised on inadequate warnings are preempted by the MDA. (See Scott, supra, 38 Cal.App.4th at pp. 323-324 [ If a fact finder applying state breach of warranty law could find that a label that complied with FDA requirements was deficient, such a finding would establish a standard for an adequate warning which would be in addition to the requirements applicable under the Act. [Citation.] That result is prohibited under section 360k ]; see also Riegel v. Medtronic, Inc., supra, 451 F.3d at pp. 106, 123 [claims for breach of implied warranty are preempted by 21 U.S.C. § 360k(a)]; Chambers v. Osteonics Corp. (7th Cir. 1997) 109 F.3d 1243, 1247-1248 [same].) Appellant s petition for rehearing is denied. There is no change in judgment. ________________________________________________________________________ PERLUSS, P. J. WOODS, J. ZELON, J. 2
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