as Defendant points out, the underlying basis for Plaintiffs DTPA claims in this case are conclusively preempted. Plaintiff bases his DTPA claim on a breach of the implied warranty of merchantability, failure to disclose, and false representations. However, Riegel addressed these very allegations, noting that the PMA process necessarily involves a determination that the FDA-approved label for the subject medical device is neither “false not misleading,” and that state common law requirements for additional warnings are preempted. Id. at 318, 329, 128 S.Ct. 999. Indeed, it has been observed by one court that “in the ten months following Riegel, courts across the country have applied Section 360k broadly, preempting all manner of claims from strict F.Supp.2d 830, 839-40 (S.D.Ind.2009) (<HOLDING>). In accordance with the high degree of
holding that the plaintiffs state law claims are preempted by federal law holding that state law fraud on the fda claims were impliedly preempted by the food drug and cosmetic act holding that state claims for fraudulent submissions to the fda were preempted holding that plaintiffs state claims were not preempted because defendant failed to show that these claims rested on standards other than those permitted by the fda holding the state law claims were not preempted