Out of Illinois comes a medical device case with odd and smelly facts. Smith v. Phoenix Seating Sys. LLC, 2012 U.S. Dist. LEXIS 127865 (S.D. Ill. Sep. 10, 2012). The medical device was a wheelchair armrest called the 312G. The plaintiffs bought it (and, earlier, the wheelchair) from the defendant, Apria Healthcare Group. Plaintiffs installed the armrest themselves. Id. at *2-3. But not right away. That’s the odd and smelly part. Plaintiffs claimed that when they first received the armrest in the mail and opened its box, it smelled. How bad? So bad that they put it out of the house. First they put it in the garage for a week. That didn’t work. It still smelled. So they moved it outside – to the patio – for another 3-4 days to air it out. While the opinion doesn’t make it seem as if this worked completely, it apparently worked enough for plaintiffs to install the armrest. Id. at *3-4.
That didn’t go so well. Plaintiffs claimed that each of them then suffered injuries from a toxic combination created by a gel contained in the armrest and the gel’s surface material. Id. at *6, 17-18.
They sued two defendants. One was Apria, whose role appeared to be that of the direct seller. Id. at *29, 30-31. Apria faced negligent failure to warn claims. The other defendant was Phoenix Seating Systems, who designed the armrest (the extent of their involvement in the design seemed to be in dispute), received the armrest from the manufacturer, repackaged it, applied some identifying labeling, and then sent it to Apria. Id. at *13-14. Phoenix faced various strict liability claims.
Alright, so the facts are a little odd. But what about the summary judgment decision? Not odd at all.
Phoenix wanted out because it wasn’t a manufacturer, because there couldn’t be a failure to warn plaintiffs who had such idiosyncratic reactions, and because medical device preemption applied. The court rejected all these arguments. Illinois product liability actions, according to the court, apply to “all persons in the distributive chain . . . including suppliers, distributors, wholesalers[,] and retailers.” Id. at *10 (quoting Hammond v. North Am. Asbestos Corp., 97 Ill. 2d 195 (Ill. 1983). So it didn’t matter that Phoenix wasn’t a manufacturer. The court also found a fact dispute as to whether the plaintiffs’ reactions were idiosyncratic. So that argument didn’t work. As to preemption – and take heed here — the 312G armrest was cleared under §510(k). But current law is that preemption only applies to devices approved under the PMA process, not those cleared under §510(k). While we’ve argued here that it’s time for the Supreme Court to reconsider this, it hasn’t done so yet.
So no preemption, and Phoenix stays in the case.
The court saw Apria differently. There was insufficient evidence in the record to establish that Apria was involved in the manufacture or design of the armrest, or that Apria had reason to know of any problem that needed to be warned about:
Apria alleges it did not manufacture the 312G, take any part in its design, have knowledge concerning the specific materials contained in the 312G, or have knowledge of complaints similar to plaintiffs’ instant grievances. . . .
As plaintiffs’ response does not address Apria’s argument concerning its lack of knowledge, plaintiffs do not dispute such allegations. Moreover, plaintiffs’ complaint does not allege Apria had any role in the 312G’s design or manufacture, or knowledge of the 312G’s alleged defective design or manufacture. Similarly, plaintiffs have not instantly offered evidence demonstrating Apria was involved in the 312G’s manufacture or design, or that other complaints or reactions to the 312G have ever been reported.
Id. at *29, *30-31 (record citations omitted).
Plaintiffs had only negligent failure to warn claims against Apria, and those claims couldn’t survive summary judgment – not on this record. Now, just like Phoenix, Apria had a hiccup. It claimed to be exempt from liability under a “seller’s exception” to product liability claims, but the statute that contained that exception had been declared unconstitutional years earlier by the Illinois Supreme Court. Id. at *24-45. So that argument didn’t work. Fortunately for Apria, its other arguments did. No duty, no claim – regardless of how bad the armrest smelled. So Atria gets out of the case.
Sometimes odd facts make for ordinary law.