2004AP 2851 Patrick Fur Farm, Inc. v. United Vaccines, Inc.

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“As the United States Supreme Court reiterated most recently in Bates v. Dow Agrosciences LLC, 125 S. Ct. 1788, 1800 (2005), we cannot ignore obvious textual differences between two pre-emption clauses. Here, in light of the agency’s clear statement of preemptive intent and the scope of that preemption, Behrens’s reasoning is unpersuasive. …

“Here, however, the federal agency has made an express statement regarding its intended scope of preemption: ‘where safety, efficacy, purity, and potency of biological products are concerned, it is the agency’s intent to occupy the field. …’

“Thus, we decline Patrick’s invitation to adopt the reasoning of Behrens. Instead, we conclude that whether Patrick’s claims are preempted by federal law turns on whether those claims involve the safety, efficacy, potency or purity of BIOCOM-DP. Because all of Patrick’s claims stem from representations regarding the vaccine’s efficacy, the claims are preempted.”

Affirmed.

Recommended for publication in the official report.

Dist III, Taylor County, Carlson, J., Peterson, J.

Attorneys:

For Appellant: Chris G. Halverson, Racine; Timothy S. Knurr, Racine

For Respondent: Timothy J. Fetterly, Bloomington, MN; Robert L. McCollum, Bloomington, MN; Michael D. Miller, Bloomington, MN