At times, we have given a glimpse into the sausage making that
goes into our production of posts on recent interesting cases and
developments. Part of the process involves standing searches
for "published" (including by the electronic services)
decisions from trial courts and appellate courts. Sometimes,
the trial court decisions are unpublished but interesting, and the
appellate decisions are published but not too interesting.
When we saw the Sixth Circuit decision in Agee v. Alphatec
Spine, Inc., — Fed. Appx. –, 2018 WL 1020078 (6th
Cir. Feb. 22, 2018), on one of our standing searches, it was not
interesting enough to merit a post. A short per
curiam decision noted how awful plaintiffs' complaint was
and how they had waived their position on preemption by mixing up
express preemption with the implied preemption raised by the
defendant's motion to dismiss. We were feeling sleuthy,
however, so we tracked down the district court's decision from
a year ago. It has
