Moreover the conduct of defense counsel cannot possibly turn on any representations of their client or for a good faith modification of existing law. We have not overlooked defendant’s argument that plaintiffs claims are preempted by federal law and that any amendment would therefore be futile. The essential problem with that argument is that it was being raised at the wrong time, under the auspices of the wrong motion. Plaintiff had a right under rule 1.190(a) to amend the complaint, so the court was not properly called upon to determine whether leave to amend should be denied on the grounds of futility. In any event, it is not at all clear that plaintiffs claims will be barred by federal pre-emption. See Medtronic Inc. v. Lohr, 518 U.S. 470, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (<HOLDING>). Cf. Buckman Co. v. Plaintiffs’ Legal Comm.,
recognizing this presumption recognizing presumption recognizing presumption against preemption presumption is properly applied to state law design defect claims against manufacturer of pacemaker fda premarket approval of device did not require preemption holding removal and preemption are distinct concepts erisa preemption does not allow removal unless complete preemption exists holding that in light of the presumption against preemption there is no field preemption of state unfair competition claims that rely on a substantial question of federal patent law because congress has not expressed its clear and manifest intention to preempt that area of law