1 District Judge of the Northern District of Ohio, sitting by

designation.

 

2Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

1

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________________

No. 95-30303

_____________________________________

ELAINE BORSKEY, ET AL.; JAMES A. BORSKEY; LEON PIERSON;

TERESA PIERSON; PEGGY MORAN; JAMES MORAN, and all

similarly situated,

Plaintiffs-Appellants,

VERSUS

MEDTRONICS, INCORPORATED,

Defendant-Appellee

VERSUS

SANOFI WINTHROP PHARMACEUTICALS,

 Defendant.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Louisiana

(94-CV-2302)

______________________________________________________

December 9, 1996

Before DAVIS and DUHÉ, Circuit Judges and DOWD1, District Judge.

PER CURIAM:2
under the limited circumstances set forth in Local Rule 47.5.4.

2

Appellants challenge the district court's judgment rejecting

their claim for damages for personal injuries predicated on

Louisiana products liability law and RICO. The district court

rejected the RICO action on grounds that RICO has no applicability

to an action for damages from personal injuries. We agree and for

reasons stated by the district court in its March 13, 1995 order

affirm the dismissal of the RICO claim.

The district court dismissed appellants' products liability

action as preempted under the Medical Device Amendments of 1976 to

the Federal Food, Drug and Cosmetic Act. 21 U.S.C. § 301 et seq.

Some time later, the Supreme Court issued a decision in Medtronics,

Inc. v. Lohr, 513 U.S. ___, 116 S. Ct. 2240, 135 L. Ed. 2d 700

(1996), which addresses the scope of the MDA's preemption

provision, 21 U.S.C. § 360k(a). 

Section 360k(a) of the MDA prohibits states from

"establish[ing] or continu[ing] in effect with respect to a device

intended for human use any requirement" that is "different from, or

in addition to, any requirement applicable under this chapter to

the device" and that "relates to the safety or effectiveness of the

device or to any other matter included in a requirement applicable

to the device." 21 U.S.C. § 360k(a). In Lohr, a plurality found

that "[n]othing in § 360k denies [a state] the right to provide a

traditional damages remedy for violations of common-law duties when
3

those duties parallel federal requirements." Lohr, 116 S. Ct. at

2255. The dissent agreed, stating that state law "claims are not

pre-empted by § 360k to the extent that they seek damages for [a

defendant's] alleged violation of federal requirements." Id. at

2264.

To the extent that the appellants' state law actions set forth

violations of federal requirements, they are not preempted.

However, any other state law claims appellants wish to assert must

be assessed individually in light of Lohr to determine § 360k's

preemptive effect. This sort of analysis should be initially

undertaken by the district court, guided by the Lohr decision.

Thus, we vacate and remand the judgment of the district court on

appellants' products liability claims for further consideration in

light of Lohr and this opinion.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.