This post is from the non-Reed Smith side of the blog.
Choice of law doesn’t get too much attention here at the DDL blog. That is due in some part to the fact that there really isn’t a defense-oriented position to take on it. Which state’s law should apply is a very case-specific analysis and in any given case, you might come out differently. It really depends on which state’s law is more favorable to your legal arguments in a particular scenario. The second reason it probably doesn’t get much attention from us is that in most personal injury, products liability cases, plaintiff’s home state’s law governs – the law where the injury occurred.
But what about when a plaintiff lives in one state but seeks medical treatment in another. Not to be considered disparaging of the many excellent healthcare facilities in southern New Jersey (where this blogger resides), but when you live a stone’s throw from some of the leading specialists in the country who happen to be across the state line in Philadelphia, you take that ride across the Ben Franklin Bridge. That’s not an unusual situation, making the choice of law question of interest.
In Finnerty v. Howmedica Osteonics Corp., 2016 U.S. Dist. LEXIS 123071, *2 (D. Nev. Sep. 12, 2016), plaintiff, a resident of Nevada, sought medical treatment from an orthopedic oncologist located in California. Plaintiff had cancer in his left leg that required either amputation of the leg or a total knee replacement. Plaintiff opted for the replacement and defendant’s modular replacement device was implanted. Id. At the time of surgery, plaintiff was “clinically obese.” Id. The surgery took place in March 2005 and plaintiff had no complications until 2011 – over 6 years later. Id. at *2-3. In August 2011, plaintiff started working as a shuttle driver for a car rental company. The job required him to lift luggage, weighing up to 80 pounds, on a repetitive basis. Id. at *3. In December 2011, while lifting luggage, plaintiff heard a “pop” in his left knee. During revision surgery, it was discovered that the implanted device had fractured. Id. Plaintiff continued to suffer complications and eventually his left leg was amputated.
Plaintiff sued the device manufacturer alleging failure to warn, negligence, strict liability design defect, manufacturing defect, and breach of express and implied warranty. Id. Defendant moved for summary judgment on all counts.
Because plaintiff resides in Nevada but underwent implantation of the medical device in California, the parties disputed which state’s law applied – but only as to the failure to warn claim. Id. at *7. We discuss the impact of that decision below, but we’ll focus on the failure to warn claim first.
Nevada adheres to the most significant relationship test set forth in the Restatement (Second) of Conflict of Laws. Id. at *8. And under the Restatement, in a case for personal injury the law most typically applied is the law of the state where the injury occurred. Id. at *9. That is unless another state has a more significant relationship. In this case, where plaintiff’s home state is not the state in which the medical treatment was obtained, the court opted to weigh all of the significant relationship factors. It concluded that many were a push. Such as, Nevada’s interest in protecting its citizens and California’s interest “in ensuring that surgeries performed within its borders comport with its applicable state laws.” Id. at *10. Where the court found California had an edge was in its “justified expectation” that its law would be applied to surgeries occurring in California. By contrast, “out-of-state visitors do not have a justifiable expectation that they will bring their state’s laws with them when they travel.” Id. at *11. If Nevada residents could do that, the court would be allowing Nevada law to “usurp other states’ legislatures.” Id. Thus, the court concluded that as to failure to warn, California law applied.
Then, applying California’s learned intermediary doctrine, the court granted summary judgment to defendant. First, the evidence showed that the device’s training materials contraindicated use in obese patients or for patients whose occupation includes “significant” lifting. Id. at *14. Second, plaintiff’s surgeon testified that he was aware of the risks of knee replacements in obese patients, but that those risks wouldn’t have changed his decision to implant the device in plaintiff. Id. Because “California law does not impose an additional duty on a device manufacturer to second guess a practicing physician when that physician has already received the necessary warnings,” summary judgment was warranted. Id. at *15.
The court also granted summary judgment on the breach of warranty claims for lack of any representation (express) and lack of privity (implied). Id. at *20-22.
As mentioned above, however, as to all remaining claims, the parties agreed that Nevada law applied. Since the judge did not need to decide the issue, there is no analysis of the choice of law on the other claims. But that leaves us to wonder why the defendant didn’t press the same choice of law argument across the board – or at least as to the design defect claims because those claims aren’t allowed under California law, but are under Nevada law. That turned out to be a significant distinction. Applying Nevada law to the strict liability design and manufacturing claims, the court denied defendant’s motion for summary judgment finding a battle of the experts created a genuine issue of material fact. Id. at *18-20.
We don’t know if the court, conducting a choice of law analysis, would have reached a different conclusion on design defect than it did on failure to warn. We tend to think it would not. California is still the location where the injury occurred and we can think of no compelling reason why the scales would tip back to Nevada for a design claim. This one may remain a mystery to us.