The recent decision in Mims v. Wright Medical Technology, Inc., 2012 WL 1681810 (N.D. Ga. May 11, 2012), is really neither a win nor a loss. Like Gaul, the decision contains three parts, and we have comments as to each.
Very briefly, the case involves a total hip implant constructed from titanium. After being implanted for over three years, it broke.
The first part of the opinion denied summary judgment on design defect claims. The plaintiff’s expert, as is common in such cases, alleged that instead of being made out of titanium it should have been made out of cobalt-chrome alloy (“CCA”). Mims, 2012 WL 1681810, at *2. Of course, if the defendant had used CCA, the expert would then have alleged it should have been made out of titanium − anything to claim a defect.
The defendant moved for summary judgment, arguing that merely claiming an alternative design was not enough. Id. at *3. That struck us as a little odd, since defendants are usually the foremost advocates of a strong alternative design requirement. The court held that since alternative design was essential to design defect litigation, that was enough to survive summary judgment:
One factor consistently recognized as integral to the assessment of the utility of a design is the availability of alternative designs, in that the existence and feasibility of a safer and equally efficacious design diminishes the justification for using a challenged design. The alternative safer design factor reflects the reality that it often is not possible to determine whether a safer design would have averted a particular injury without considering whether an alternative design was feasible. The essential inquiry, therefore, is whether the design chosen was a reasonable one from among the feasible choices of which the manufacturer was aware or should have been aware. Alternative safe design factors include: the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.
Id. at *2.
Frankly, we don’t mind that particular ruling too much. We could even see using this quote in one of our cases.
The real problem in Mims was that the defendant hadn’t separately moved to exclude the plaintiffs’ expert under Daubert. The court latched onto that and refused to “consider the reliability” of the expert testimony on summary judgment. Id. at *3. This procedural two-step is worrisome in that it allows an expert opinion that may well be inadmissible to defeat summary judgment. The general rule has been that only admissible evidence counts on summary judgment, and the court’s wielding of a procedural fine-toothed comb undercuts that rule. One take-away from Mims is to make sure to file Daubert motions separately and in advance of summary judgment, depending of course on the pre-trial schedule in any given case.
Another more unusual suggestion: We’ve had some success using preemption against this type of claim, see Greenwood v. Pennsylvania Hospital, 1999 WL 1133313, at *2-3 (Pa. C.P. Philadelphia Co. June 9, 1999) (claim that implant should not have been made from stainless steel held preempted), but it depends on the classification regulation. We’ll explain. There’s usually no preemption in Class II metallic implants like hip implants under Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996), but there can be − if there’s a “device-specific” regulation, and the plaintiff’s particular claim is “different from or in addition to” something in that regulation under 21 U.S.C. §360k(a).
There are device-specific regulations for essentially all medical devices − but unfortunately they’re usually one-paragraph long and thus don’t cover many aspects of the device. These are the FDA’s identification and classification regulations. However, they do frequently say something about the metallic composition of implants. There are several hip implant I&C regs, see 21 C.F.R. §§888.3300-3350, and we don’t know which one applies specifically to Mims. Most of them mention only “cobalt-chromium-molybdenum,” which was the plaintiff’s proposed design alternative in Mims, so the preemption argument wouldn’t fly.
However, if §888.3310 were applicable to this implant, or if some plaintiff’s expert offered the same opinion against the manufacturer of a §888.3310 implant, there’s a decent preemption argument. That’s because this section states, as to composition, that such devices are “made of alloys, such as cobalt-chromium-molybdenum and titanium alloys.” Emphasis added. In this device-specific regulation, the FDA has expressly stated that “titanium alloys” are okay. Thus, our preemption argument in such a situation would be that since a device specific regulation specifies “titanium” as acceptable composition, a common-law claim that titanium construction alone is a defect would be preempted even under Lohr.
The second part of the Mims opinion also denied summary judgment as to the plaintiffs’ warning claim. 2012 WL 1681810, at *4. The defendant moved based solely on the warning’s adequacy. That’s hard to do unless the relevant part of the warning is really detailed. The description of the warnings in Mims suggests otherwise in that case.
We find it much easier to win summary judgment in warning cases on causation − that the prescriber already knew the allegedly omitted information or that the information wouldn’t have changed what the prescriber did or the warnings. Supporting facts would also include the prescriber continuing to utilize the device, with no change in procedure, after the plaintiff’s injury.
The lesson from Mims is that warning summary judgment motions ideally should have a double-barreled approach of both adequacy and causation.
The court in Mims seemed to assume, without any evidence (at least none was cited) that a different warning might have led to a different outcome. Maybe the issue simply wasn’t raised in the Mims motion, but again the court’s willingness to rely on less than admissible evidence is troubling, since summary judgment can be sought on the grounds that the plaintiff has no evidence on an essential element where the plaintiff bears the burden of proof.
The final third of the Mims opinion dismissed punitive damages claims as a matter of law because the defendant demonstrated that the implant complied with FDA regulations:
[T]he Court concludes that the Plaintiffs would not be able to establish by clear and convincing evidence culpable tortious conduct that would authorize the imposition of punitive damages. Moreover, punitive damages are typically not appropriate where the manufacturer has complied with regulatory standards.
Mims, 2012 WL 1681810, at *5 (citing Stone Man, Inc. v. Green, 263 Ga. 470 (1993); Welch v. General Motors Corp., 949 F.Supp. 843 (N.D.Ga.1996)).
This part of Mims almost makes up for the rest of it. Preclusion of punitive damages by regulatory compliance is something we’ve advocated before, here. We prominently mentioned the Stone Man decision that the court followed in Mims. So we take this opportunity to applaud the third part of Mims.