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Consumer Wins Major Legal Battle Against Prosthetic Hip Manufacturer

In recent years medical device manufacturers have increasingly been using what is known in the industry as "federal preemption" defenses to defeat personal injury lawsuits soon after they are filed. In many of these cases dismissal comes so fast the manufacturer is not even required to produce a single document addressing whether the medical device was made as it should have been.

Today, in a 33 page opinion authored by United States Court of Appeals Judge David F. Hamilton, medical device manufacturers using this strategy were dealt a major blow. The case involved claims by 56 year old Margaret Bausch against Stryker Corporation; manufacturer of a prosthetic hip implanted in Ms. Bausch that later had to be removed and replaced.

Ms. Bausch claimed her artificial hip was manufactured in violation of federal safety standards and, as a result, she should be allowed to pursue a claim for damages under Illinois law. Successfully at first, the manufacturer argued since the device had pre-market approval from the FDA claims for damages were preempted by federal law. This argument resulted in Ms. Bausch's lawsuit being dismissed. However, she appealed and today a unanimous panel of three judges reversed that ruling.

Ms. Bausch was represented by Rapoport Law Offices in Chicago. Joshua Weisberg, the partner who argued the case, explained: "This ruling is a great victory for consumers. People who suffer harm from defective medical devices manufactured in violation of federal regulations should have remedies in court not only because this is fair, but also because it makes us all safer. The Court of Appeals got it right today. Congress never intended to protect negligent medical device manufacturers who violate federal regulations from liability for injuries caused by these violations the way some courts have previously held, and we believe today's opinion will go a long way toward eliminating an injustice that has gained too much traction in the lower courts in the last few years."

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