Failure-To-Warn Claims in Gastric Balloon Case Preempted, 5th Cir. Affirms

NEW ORLEANS — A federal appellate panel has upheld dismissal of a lawsuit targeting ReShape Lifesciences Inc.’s gastric balloon, affirming that the state law failure-to-warn claims are impliedly preempted because there is no private right of action to sue for violations of the Food, Drug and Cosmetic Act.

On April 1, the 5th Circuit U.S. Court of Appeals panel found the allegations that ReShape violated the FDCA contravenes the U.S. Supreme Court’s ruling in Buckman Co. v. Plaintiffs’ Legal Committee.

Ohio dentist Dr. Paul Vesoulis sued ReShape Lifesciences Inc. after his esophagus was perforated by ReShape’s weight loss balloon when …