they are not binding, and because they fail to convincingly address why such a state law requirement would be different from, or in addition to, the federal requirements. For example, the court in Gavin v. Medtronic, Inc., Case No. 12-cv-851, 2013 WL 3791612, at *15-16 (E.D.La. July 19, 2013), cited Gomez v. St. Jude Med. Daig Division Inc., 442 F.3d 919 (5th Cir.2006), to hold that the plaintiffs breach of express warranty claim was preempted. Gomez, however, did not deal with warranties made in the off-label promotion of a medical device; rather, its preemption holding was based on the fact that “[the] express warranty was part of the IFU, which is itself part of the PMA process.” Gomez, 442 F.3d at 932. See also Caplinger v. Medtronic, 921 F.Supp.2d 1206, 1222 (W.D.Okla.2013) (<HOLDING>). Although the Court finds that the breach of
holding that although the express warranty claim was not federally preempted the plaintiff had not alleged sufficient facts for the claim to survive dismissal under rule 8 where the pjlaintiff alleged no facts demonstrating that defendants made any affirmations specifically to plaintiff or her physician so as to form the basis of the bargain holding that because the plaintiff was not disabled for the purposes of the ada this court need not to address the other elements of the prima facie case holding that even if the industry and federal regulations evidenced an inherent danger and the defendant knew or should have realized that the device was or was likely to be dangerous for the use for which it was supplied there was a complete absence of evidence that the defendant had reason to believe that the plaintiff or its employees would not realize the danger holding that the plaintiffs breach of express warranty claim was preempted because it would require a plaintiff to persuade a jury that the infuse device was not safe and effective  contrary to the fdas approval but failing to address the fact that the fda did not approve the offlabel use holding that claim for breach of good faith and fair dealing was precluded but only because there was not an express agreement between the parties