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We can’t decide whether Anastasi v. Wright Medical Tech., 2014 U.S. Dist. LEXIS 58467 (E.D. Mo. Apr. 28, 2014), is bad or just frustrating.  It might just feel bad.  The fact section takes you through a soul-crushing, “accepted as true” recitation of plaintiff’s allegations that seems a bit over the top. It goes on for pages and pages, id., at *4-17, and the court never breaks character.

The analysis of the viability of plaintiff’s design defect claim feels the same.  The defendant, the manufacturer of a hip implant device, pointed to comment k of section 402A of the Restatement (Second) of Torts as a basis to dismiss the claim.  Some products, like medical devices and prescription drugs, are unavoidably unsafe:

There are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs . . . . Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The same is true of many other drugs, vaccines, and the like, many of which for this very reason cannot legally be sold except to physicians, or under the prescription of a physician . . .. The seller of such products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending to their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Comment k (emphasis added).

But the court then discusses how Texas has no precedent applying comment k to medical device claims, even though everybody agreed that Texas applies it to prescription drugs. Why wouldn’t it also apply to medical devices?  It does everywhere else.  The court also suggests that comment k might be an affirmative defense rather than a standard that limits claims that can be made by a plaintiff.  All of that seems bad.

But the court’s ultimate decision is less so.  The court just punts to the summary judgment stage, holding that it would reconsider the defendants’ position after discovery.  Id. at *17-24.  That’s not great, but not nearly as bad as it feels.

The court’s analysis of plaintiff’s fraudulent misrepresentation claim is similarly uncomfortable.  The factual background reads like this: defendant knew this, but then did this, didn’t do that and concealed this.  It’s all very foreboding. But then the court dismisses the claim.  There is not a lot of analysis of the allegations or application of the law or pleading standards.  The court essentially says to the plaintiff, “nah, try again”:

“Judicial economy would be ill-served if the Court were to engage in the labor-intensive process of scrutinizing the specific allegations at this point, find them insufficient, and then follow the usual pattern of allowing the plaintiff at least one opportunity to replead.”  The Court will give Plaintiff the opportunity to replead her fraud claim (Count VI) before engaging in a Rule 9(b) analysis.  Should Wright Medical Group thereafter believe the amended complaint’s fraudulent misrepresentation claim still is insufficiently pled, they may file another Rule 12 motion.

Id. at *28-29 (quoting Schouest v. Medtronic, Inc., 2014 WL 1213243 at *14 (S.D. Tex. March 24, 2014).  It’s a “go home and work on your game” ruling.

So there’s a bright side.  The court dismissed the fraud claim (for now) and didn’t rule out a judgment against the plaintiff after discovery on the design defect claim.  And so we’ll watch to see how it all turns out in the future.  Maybe there’s a chance that our uneasy feeling will go away.