Just lately, inside the course of a few weeks, two completely different courts reached the identical conclusion – {that a} plaintiff’s negligence per se claims, largely primarily based on purported violations of the Meals, Drug & Beauty Act (“FDCA”), didn’t state a declare.  See Disarro v. Ezricare, LLC, 2023 WL 6619445 (M.D. Fla. Oct. 11, 2023), and Alcozar v. Orthopedic & Sports activities Medical Heart, ___ N.E.3d ___, 2023 WL 6302337 (Ind. App. Sept. 28, 2023).  One other factor that these two opinions share is that neither of them relied on federal preemption in disposing of the FDCA-related negligence per se claims.

These choices, and the best way they had been reached, elevate nostalgic emotions in these of us bloggers who’re Orthopedic Bone Screw veterans.  That’s precisely how we attacked – and often beat – FDCA-based negligence per se claims earlier than we gained the preemption ruling in Buckman Co. v. Plaintiffs Authorized Committee, 531 U.S. 341 (2001) (a Bone Screw case).  Certainly, considered one of Bexis’ very first blogposts, again in 2007, was a complete evaluation of non-preemption defenses to negligence per se.

The very first non-preemption protection to negligence per se talked about in Bexis’ 2007 submit was legislative intent.  That was the bottom on which Disarro was determined.  The negligence per se allegations in Disarro claimed violations of FDCA provisions “supposed to make sure the purity and security of [defendant’s] merchandise.”  2023 WL 6619445, at *1. 

Disarro “agree[d] with Defendants” that the negligence per se claims “should be dismissed as a result of there is no such thing as a personal proper of motion beneath the FDCA”:

In Florida, legislative intent needs to be the first issue thought of by a courtroom in figuring out whether or not a reason for motion exists when a statute doesn’t expressly present for one. . . .   The FDCA doesn’t expressly present a non-public reason for motion.  Legislative intent, as evidenced by the language and construction of the Act, doesn’t help the conclusion that the Florida Drug and Beauty Act impliedly supplies a non-public reason for motion.  The FDCA expressly prohibits personal claims for violations of that statute, 21 U.S.C. §337(a), strongly evidencing a legislative intent to not create a non-public reason for motion.  Beneath Florida legislation, subsequently, Plaintiff can’t use a negligence per se declare to create a non-public reason for motion for Defendant’s alleged violations of the FDCA.”

Id. at *1-2 (citations and citation marks omitted).  The first quotation omitted, Blinn v. Smith & Nephew Richards, Inc., 55 F. Supp. second 1353, 1361 (M.D. Fla. 1999), was a Bone Screw case.  Due to the legislative intent embodied within the absence of any personal FDCA reason for motion, the negligence claims had been dismissed.  2023 WL 6619445, at *2.

The second current determination, Alcozar, exemplifies one other frequent downside with FDCA-based negligence per se.  Plaintiffs continually search to create FDCA violations that don’t exist, typically by way of weird interpretations of FDA rules that the FDA has by no means adopted.  Alcozar, like Disarro, concerned claims referring to drug impurities, what the FDA calls “adulteration.”  In Alcozar, the contamination being alleged arose from the infamous NECC compounded drug incident – sure, the case had been round for over a decade in a single incarnation or one other.  2023 WL 6302337, at *1-2.  The most important downside for the handfuls of plaintiffs within the consolidated Alcozar enchantment was discovering a deep pocket, for the reason that actually accountable social gathering, the drug compounder, was lengthy since bankrupt.  Thus, the plaintiffs in Alcozar had been now suing quite a lot of clinics and well being care suppliers.

Plaintiffs in Alcozar asserted negligence per se claims primarily based in alleged FDCA violations, in addition to violations of the largely parallel Indiana “little FDCA” statute.  Id. at *1.  Sadly for them, the enactments they claimed had been violated didn’t apply to this set of defendants.  “Put merely, [the statutory] labeling necessities don’t apply to the actions of Defendants on this case.”  Alcozar, 2023 WL 6302337, at *5.  Making use of rules supposed for producers (or, right here, compounders) as a substitute to well being care suppliers would have made a mockery of the FDA’s regulatory scheme.

Plaintiffs are asking us to use a requirement from a very completely different state of affairs to at least one wherein it is not sensible.  It’s, after all, true that had [the compounder] been administering the [drug] to Plaintiffs as a substitute of Defendants, Defendants would have needed to challenge prescriptions to [the compounder] with a particular affected person’s identify, however that by no means occurred.  Plaintiffs level to no FDCA requirement that such data be included in an order for medication to be delivered to the physician who ordered it.

Id.  Furthermore, “it could be nonsensical to require instructions for affected person use for a drug that’s injected into the affected person by a health care provider in a scientific setting.”  Id.  Plaintiffs’ reliance on FDCA allotting rules equally failed, as a result of that they had:

no relevance to what occurred on this case:  no [drug] was “allotted” by anybody − it was administered by Defendants.  Consequently, the necessities for allotting medication to a affected person didn’t need to be met on this case.

Id. at *6.

The provisions of the Indiana state statute plaintiffs claimed might help negligence per se had been equally far afield.  Id. at *6-7.  Additional, as a result of the rules had been irrelevant to those defendants, not one of the purported violations – assuming that all of them occurred – might presumably have resulted in hurt to the plaintiffs, for the reason that contamination that was the supply of their damage had already been launched upstream by the bankrupt compounder.

None of those provisions, no matter their function or utility, have any connection in anyway with the undisputed reason for the accidents on this case − contaminated [drugs].  Had Defendants performed any − or all − of the issues that Plaintiffs argue they had been required to do, it could have modified nothing, as not one of the alleged necessities have something to do with the compounding of the [drug] or its dealing with.

Id. at *4.  Thus, the negligence per se claims in Alcozar failed as a result of, relying on how one views the opinion’s holdings, plaintiffs proved no violation (for the reason that rules had been inapplicable to those defendants), or as a result of not one of the purported violations had been causal.

Disorra and Alcozar are reminders that, with FDCA-based negligence per se claims, in most states there is no such thing as a cause for a defendant to place all of its eggs within the Buckman basket.  Most such claims additionally fail for unbiased state-law grounds.  Defendants simply need to familiarize themselves with what works in any specific state.  Bexis’ 2007 submit, although dated, is an effective place to start that familiarization.