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Once upon a time there was a federal judge . . . . When we were little, we liked it when our mom spun free-form fairy tales for us.  We would contribute the object of the “was” (“Once upon a time there was a . . . bullfrog”), and she would make up the rest as she went along.  Which is fine for mommies, but less so for federal judges, as today’s (very short) case illustrates.

In Fay v. Depuy Orthopedics, Inc., et al, 2015 U.S. Dist. LEXIS 175344 (D.N.D. June 11, 2015), plaintiff’s hip was replaced with a metal-on-metal hip system.  The system consisted of various components, two of which were at issue:  the femoral head and the acetabular cup.  Both components come in various sizes, but, for the system to work correctly, matched sizes of the two components must be implanted in the patient.

In Fay, it was undisputed that Plaintiff received mismatched components and had to undergo revision surgery.  One of the defendants was a distributor that marketed and sold the system. Plaintiff’s surgeon testified that two specific sales reps employed by the distributor were always in the operating room when he implanted that particular hip system.  According to the surgeon (who was not sued), the reps were responsible, based on a process called “templating” of the patient’s x-rays, for placing an appropriate range of sizes of the two components on a table in the operating room before the surgeon arrived.  From the prepared template, the surgeon would determine what size acetabular cup would be implanted, and would ask for that size cup and the correspondingly-sized femoral head.   The sales reps were allegedly responsible for selecting the components from the implant table, verifying for both that they had pulled the size the surgeon requested, and handing the packaged components to the circulating nurse, who unpacked them and placed them in the sterile field.  In the absence of sales reps, the circulating nurse would be responsible for selecting the correct sizes of components.

The distributor moved for summary judgment, arguing that there was no evidence that its sales reps were ever actually in the operating room on the day of the plaintiff’s surgery, as the intraoperative report, in which the circulating nurse was responsible for recording the names of everyone in the operating room, omitted any mention of sales rep participation.  Plaintiff argued that the nurse had simply forgotten to include the names of the sales reps, and the surgeon took an affidavit swearing that he never implanted this system without the assistance of his chosen reps.

But wait – under what legal doctrine could the plaintiff maintain a claim against a distributor based on conduct by its representatives?  Plaintiff argued that it was the reps’ “duty and responsibility to make sure proper implants [were] available for the case and that the proper implants [were] in fact what [were] opened and used at the time of surgery.”  Fay, 2015 U.S. Dist. LEXIS 175344 at *8 (internal punctuation and citation omitted).  The distributor countered that it owed no such duty to the plaintiff.  The court noted that the parties had “not directed the Court to any legal authority outlining the duty of an orthopedic sales representative in a case of this nature.”  Id. at *7-8.  End of decision, right?  If plaintiff could not cite authority for imposing a duty on the sales reps, then it didn’t matter whether the reps were in the operating room or not, right?  (Erie principle #1 – if there is no currently existing state-law duty, a federal court exercising diversity jurisdiction is not supposed to create one.  We have law from every circuit (including the Eighth) for that proposition, here and here.

Wrong.  Glossing over the legal vacuum to (silently) superimpose an imaginary duty, the judge held that there was a genuine issue of material fact as to whether the reps were present for the surgery, and denied summary judgment.  We shake our figurative head on several levels.  First, call us old-fashioned, but we’re pretty sure a plaintiff shouldn’t be able to maintain a lawsuit when she has no legal claim, and that it wasn’t the defense’s burden to find precedent affirmatively rejecting nonexistent duties.  Second, on a more personal level (we represent device manufacturers), we are horrified at the notion that a judge can “create” a duty that could subject sales representatives to liability for a surgeon’s conduct in an operating room.  In any event, we can only hope that one federal judge in the District of North Dakota will come to his senses as the case progresses.  And that all will live happily ever after.