Albert Slater v. Optical Radiation Corporation

POSNER, Circuit Judge.

The district judge dismissed this diversity personal-injury suit on the pleadings, on the ground that it was preempted by an investigational-device exemption issued by the Food and Drug Administration under the Medical Device Amendments of 1976 to the Food, Drug and Cosmetic Act of 1938, 21 U.S.C. §§ 301 et seq. 756 F.Supp. 370 (N.D.Ill.1991). He thus disagreed with Mitchell v. Iolab Corp., 700 F.Supp. 877 (E.D.La.1988), the only other case concerning the preemptive force of an exemption for an investigational device — which makes ours a case of first impression at the…