It has been awhile since we touched on the Fifth Circuit, but the MIghty Mighty Fifth neither slumbers nor sleeps. The Court has taken an ADA case en banc and has released two cases dealing with federal preemption as applied to medical devices.

On the ADA font, Frame v. City of Arlington involves the potential application of the Americans with Disabilities Act to a city and its sidewalks and curbs as well as how the statute of limitations applies to such claims.

• A panel of the Court first held (pdf) that the City’s curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II but that the district court had misallocated the burden of proof on limitations.
   
• On rehearing (pdf), the panel recognized that the case presented an issue of first impression and held that that sidewalks curbs, and parking lots are not Title II services, programs, or activities; thus, the plaintiffs lack a private right of action to enforce the regulations unless noncompliance has denied access to a service, program, or activity--if they survive the statute of limitations on which the district court had misallocated the burden of proof.
   
• Now (pdf) the en banc Court will consider the case after taking supplemental briefing.

Two different panels of the Court also issued decisions dealing with preemption of personal injury claims arising from medical devices:

• In Hughes v. Boston Scientific Corporation (pdf), the Court held that the Medical Device Amendments to the Federal Food, Drug, and Cosmetics Act preempted the plaintiffs’ claims concerning a HydroThermAblator used to treat excessive uterine bleeding. “Failure to warn” claims against the manufacturer were viable to the extent it was predicated on the failure to comply with federal statutes and regulations. Judge Davis wrote the Court’s opinion.
   
• In Funk v. Stryker Corporation (pdf), the Court affirmed dismissal of the plaintiff’s claims arising from his hip replacement because the claim, as pleaded, was preempted. There are additional procedural wrinkles. The Court did not consider a potential theory in the plaintiff’s second amended complaint because he had not appealed the order denying leave to file it. Likewise, the Court validated the district court’s use of judicial notice as being consistent with a dismissal on the pleadings. Judge Jolly wrote the Court’s opinion.