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Today we bring you the DDL blog version of the “duck test.”  The “duck test” goes like this – if it walks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.  When you see a duck swimming in a pond, you don’t normally say:  “hey, look at that bird.”  You know a duck when you see one and that’s what you call it.  Well, we think the same rule applies to medical devices and medical devices are not consumer goods.

The court in McCurdy v. Wright Med. Tech., Inc., 2020 U.S. Dist. LEXIS 31804 (D. Del. Feb. 25, 2020) agreed.  Plaintiff had hip replacement surgery in which hip replacement components manufactured by the defendant were implanted in 2011.  Id. at *3.  Plaintiff developed problems requiring removal of the device in 2017.  Id.  Plaintiff’s complaint included claims for strict liability, negligence, negligent misrepresentation, fraudulent misrepresentation, and breach of express and implied warranty.  Id. at *2.

Defendant moved to dismiss the breach of warranty claims on the ground that they were time barred.  At the heart of the issue was whether the hip replacement device was a consumer good or a non-consumer good.  Under Alabama law, for a non-consumer good, the statute of limitations begins to run at the time the tender of delivery was made which would be at the time of implant in 2011.  For consumer goods, the statute runs from the date of injury which plaintiff argues would have been at the time of explant in 2017.  Alabama defines consumer goods as “goods that are used or bought for use primarily for personal, family, or household purposes.”  Id. at *14.  At this point, from a completely non-legal, practical application point of view, you should be thinking about things like toasters, hair dryers, televisions, and washing machines.  We don’t think anyone, if being honest, when asked to identify a consumer good would say “my metal hip,” “my hernia mesh,” “my pacemaker,” or my “my bone screws.”  If it doesn’t walk, swim, or quack like a duck, it’s probably not a duck.

The Alabama Supreme Court has not ruled on this issue, but a federal Alabama court considering a similar argument found that a medical device “is clearly inconsistent with [Alabama’s] definition of consumer good.”  Id. at *16.  Plaintiff offered no authority or reasoned argument for the Delaware court to find differently.  Therefore, plaintiff’s breach of warranty claims were dismissed as time barred.

There are a smattering of references on the blog to other cases holding that implanted medical devices are not “consumer goods.”  The issue arises in various contexts and has various consequences, most of which are good for defendants – such as barring breach of warranty claims.  The issue has also been used to successfully defeat consumer fraud claims as most consumer protection statutes similarly limit recovery to goods for personal, family or household use.  So, while the holding led to a time-barred claim in this case, if followed, it could have other favorable consequences in other cases.