A product is not defective simply because someone was harmed by it. That seems a simple enough point. Courts often acknowledge it, though sometimes in a perfunctory, mumbling fashion. What gives teeth to the mumbling is when state law requires the plaintiff to show a safer alternative product. If really pressed, many plaintiffs cannot articulate a safer alternative product. All they really can and want to articulate is the awfulness of the product, the bad faith of the defendant, and the gruesome nature of the injury. That is a gripping story, but under the law in many jurisdictions, it is simply not enough.

It was not enough in Barnes v. Medtronic, PLC, 2019 WL 1353880 (E.D. Mich. March 26, 2019). The plaintiff in Barnes underwent a polyester hernia mesh implant. A hole developed in the implant and the mesh “strangulated” a section of intestine. In follow-up surgeries, doctors found that mesh adhered to the small intestine. The doctors removed some of the mesh, but could not remove all of it because some mesh incorporated into the abdominal wall. The plaintiff sued for “grossly negligent design,” “grossly negligent manufacture,” breach of warranty, and fraud. The defendant moved to dismiss. The plaintiff conceded that she had not made out a case for fraud, but she fought back on the design, manufacturing, and warranty theories.

Michigan law governed and, as we often find, Michigan law is uncommonly sensible. (Marvin Gaye would have turned 80 this week. Any state that gave rise to Motown music must be pretty great.) Michigan requires that a plaintiff pursuing a design defect claim must show “a feasible alternative production practice.” The plaintiff in Barnes argued that she had offered three safer alternatives: (1) a non-mesh shoulder procedure, (2) biological mesh, and (3) polypropylene mesh.

The Barnes court could not find Michigan Supreme Court precedent laying out the difference between a feasible alternative and an entirely different product, but did find well-reasoned authorities from Alabama, Texas, and the Fifth Circuit (applying Louisiana law). You will recognize some of those authorities from discussions on this blog, such as here. https://www.druganddevicelawblog.com/2016/08/alabama-supreme-court-imposes-tough-standard-on-safer-alternative-design.html The Barnes court took those excellent teachings to heart and concluded that plaintiff’s “proposed alternatives are alternative treatment methods or alternative types of mesh, not alternative production practices or designs for polyester mesh,” and are thus not alternative designs as a matter of law. Plaintiff was essentially arguing that any use of polyester mesh was bad. That is a categorical approach that would distort tort law and turn it into a vehicle for bad policy. For example, any motorcycle accident could culminate in a verdict that motorcycles as a category are unsafe compared to cars. Adios, Harley Davidson. Adios, consumer and doctor choice.

The manufacturing and warranty claims end up smelling like a quasi-res ipsa loquitur theory. The plaintiff argued that the product must have been defective because it was placed in a location totally inaccessible to her after implantation. But that is not res ipsa loquitur. Let’s apply the correct Latin phrase: it is a non sequitur. The plaintiff’s argument ignores another, obvious alternative, one that is part of a whole other body of tort law: medical malpractice. Without actual evidence of a manufacturing error – and, as with most such claims, the plaintiff proffered precisely nothing – the manufacturing and warranty claims had to be dismissed.