# Nina Michael v. Shiley, Inc. Hospital Products Group, Inc., (Formerly Howmedica, Inc.) Pfizer, Inc

> Court of Appeals for the Third Circuit · February 7, 1995 · 46 F.3d 1316

URL: https://www.frixlaw.com/law-library/cases/9487784

## Case

- **Full name:** Nina MICHAEL, Appellant, v. SHILEY, INC.; Hospital Products Group, Inc., (Formerly Howmedica, Inc.); Pfizer, Inc.
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** February 7, 1995
- **Citations:** 46 F.3d 1316; 25 U.C.C. Rep. Serv. 2d (West) 683; 1995 U.S. App. LEXIS 2249; 1995 WL 45034
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Stapleton, Hutchinson, Garth, Sloviter, Becker, Mansmann, Greenberg, Scirica, Cowen, Nygaard, Alito, Roth, Lewis, McKee, Sarokin
- **Cited by:** 103 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9487784

## How later opinions describe it (automated extraction)

- stating that jury’s finding that manufacturer breached implied warranties was preempted because accepted standards for design and manufacture of products under state law may deviate from FDA’s determinations in PMA process
- noting, without expressing a view on the validity of the regulation, that “[d]espite the reference in 21 C.F.R. § 808.1(d)(1) to laws of general applicability, we hold that the statutory language of § 360k preempts Michael’s claims for breach of the implied warranties of merch…
- stating that it is “satisfied that the pre-emption discussion and holding [in Cipollone] represents the [Supreme] Court’s current pre-emption analysis”
- explaining that it was "satisfied that the preemption discussion and holding [in Cipollone ] represents [this] Court's current preemption analysis”
- noting plaintiff's argument based on the "general applicability" language in Sec. 808.1(d)(1) but expressing no view on the effect of Sec. 808.1(d)(1) "because Shiley disclaimed all implied warranties as it was entitled to do under the Code"

## Opinion text

SUR PETITION FOR REHEARING
March 7, 1995
The petition for rehearing filed by appel-lees in the above-entitled case having been submitted to the judges who participated in the decision of this Court and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied. Judge Roth would have granted the petition for rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9487784. Public record. Not legal advice.