GUSKY v. MEDTRONIC, INC. et al

Filing 10

ORDER. Defendants' Motion to Dismiss (Doc. 5 ) is GRANTED. Plaintiff's strict liability and breach of warranty claims are DISMISSED WITH PREJUDICE. Dismissal of the negligence claims is without prejudice, and Plaintiff may file an amende d complaint by 3/17/2025. Should Plaintiff choose to amend, she must make last, best efforts to state a viable claim, because additional leave will not be granted. If an amended complaint is not timely filed, Plaintiff will be deemed to stand on her current pleadings, and final judgment will be entered. Signed by Judge Cathy Bissoon on 3/5/2025. (dcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUDY GUSKY,
Plaintiff,
v.
MEDTRONIC, INC., et al.,
Defendants.

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2:24-cv-01113-CB
Judge Cathy Bissoon

ORDER
Defendants’ Motion to Dismiss (Doc. 5) will be granted, with prejudice regarding her
claims for strict liability and breach of warranty. The Motion will be granted on her negligence
claim, without prejudice to amendment.
Plaintiff concedes that her strict liability and breach of warranty claims are preempted.
Doc. 8 at ECF-header pg. 5 of 16. Her arguments against taking judicial notice of the FDA
premarket approval of Defendants’ product lack merit. This Court joins the others to have done
so. See, e.g., Vincent v. Medtronic, Inc., 221 F.Supp.3d 1005, 1009 & n.4 (N.D. Ill. 2016);
Leroy v. Medtronic, Inc., 2015 WL 4600880, *1, *5 (N.D. Fla. Jul. 29, 2015); Sons v. Medtronic
Inc., 915 F.Supp.2d 776, 778, 781 (W.D. La. 2013).
As pleaded, Plaintiff’s negligence claim is preempted. There is a “narrow gap” through
which a parallel state claim may survive express and implied preemption. The parameters are
explained in McPhee v. DePuy Orthopedics, Inc., 2013 WL 5462762 (W.D. Pa. Sept. 30, 2013)
and Gross v. Stryker Corp., 858 F.Supp.2d 466, 493 (W.D. Pa. 2012). Plaintiff’s arguments are
rejected to the extent they are inconsistent with those decisions, and the Court will assess
Plaintiff’s amended pleading, should she file one, under the standards therein.

Defendant’s Motion to Dismiss (Doc. 5) is GRANTED, and Plaintiff may file an
amended complaint by March 17, 2025. Should Plaintiff choose to amend, she must make last,
best efforts to state a viable claim, because additional leave will not be granted. If an amended
complaint is not timely filed, Plaintiff will be deemed to stand on her current pleadings, and final
judgment will be entered.
IT IS SO ORDERED.

March 5, 2025

s/Cathy Bissoon
Cathy Bissoon
United States District Judge

cc (via ECF email notification):
All Counsel of Record

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