Unlike the Big Guy tonight, we here at the Drug and Device Law Blog do not distribute bags of toys. Throughout this annus horribilis, we’ve handed out plenty of veritable mixed bags. Langner v. Boston Sci. Corp., 2020 U.S. Dist. Lexis 222125 (D. Nebraska Oct. 1, 2020), is another such mixed bag. Langner was a pelvic mesh case with the usual catalogue of claims: strict liability design defect, failure to warn, negligent manufacture and design, and breach of express warranty. The defendant moved for summary judgment, both attacking the merits and arguing that the action was barred by Nebraska’s four year statute of limitations. The defendant won some and lost some.

The Langner court denied the statute of limitations motion because it focused on the fact that three of the plaintiff’s doctors told her that her symptoms were not caused by the mesh. While there were other facts suggesting the plaintiff should have been on some sort of notice earlier, the court refused to start the clock until her doctor ultimately told her the mesh was the problem and he performed a revision surgery. Surely, something less than that could trigger the statute of limitations. We do not interpret Langner as setting the floor. Anyone who does interpret the Langner decision that way is officially naughty.

The Langner court also denied summary judgment on strict liability product defect. The defendant argued that (1) the mesh device was not unreasonably dangerous to the ordinary consumer, and (2) the plaintiff failed to show that the device was in a defective condition when it was placed on the market and left the defendant’s condition. The key issue here was whether the “ordinary consumer” was the patient or the doctor. The defendant contended it was the latter, but the Langner court held that, per Nebraska law, it is “implicit” that the consumer or user of a medical device is the patient, not the doctor. We are neither pleased nor surprised by this result.

So much for the coal in the stocking. Now come the goodies.

The Langner court tossed the failure to warn claim because, even accepting for the sake of argument that the warnings accompanying the mesh device were inadequate, the implanting doctor testified that further warnings in the brochure or package insert would not have altered her decision to treat the plaintiff’s stress urinalysis incontinence by implanting the mesh device. Moreover, the implanting doctor testified that she was aware of the relevant risks based both on what she learned from the manufacturer and what she learned from her education, experience, discussions with colleagues, and review of the medical literature. The causal link between the allegedly inadequate warning and the patient’s injury was broken. The failure to warn claim failed.

Deck the halls, indeed.

The negligence claim turned on whether the manufacturer’s conduct was reasonable in view of the foreseeable injury. The defendant argued that the record was devoid of evidence of unreasonableness on its part. In response, the plaintiff argued that she “will proffer considerable evidence of Defendant’s unreasonable some later, unspecified date. That’s like unwrapping a Christmas present and getting an IOU. As the Langner court pronounced, “That is not enough.” Summary judgment is time to put up or shut up. Promising to put up later does not create an issue of material fact. The negligence count was exiled to the island of misfit claims.

The defendant argued that the express warranty claim was barred because the plaintiff had not supplied timely notice as required under Nebraska Uniform Commercial Code section 2-607(3)(a). The plaintiff essentially said, ‘Here’s your notice – check out this complaint.’ The Langner court disagreed with the plaintiff. While there was authority in lower Nebraska courts going both ways, the Langner court predicted that the Nebraska Supreme Court would strictly construe section 2-607(3)(a)’s requirement of notification “within a reasonable time after [the buyer] discovers or should have discovered any breach” to mean that such notice must issue prior to the filing of a complaint. One of the reasons for section 2-607(3)(a) was to offer the seller a chance to cure the breach. There could be negotiations. Perhaps litigation could be avoided. Those goals would be frustrated if a disgruntled customer could launch a lawsuit without prior notice. The plaintiff in Langner jumped the gun. Therefore, the express warranty claim was a goner. (It is strange how much of Langner turns on timing. The defendant thought the complaint was filed too late, though the court disagreed. But the court ended up holding that the complaint was filed too soon – as in, before the requisite UCC notice was supplied. One grows dizzy.)

Ho Ho ho. Next time you face a warranty claim, take a look at your jurisdiction’s UCC law. Maybe, like that little package hiding under the tree, it will give you a pleasant surprise.

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We read recently that the reason Brits usually say “Happy Christmas” instead of “Merry Christmas” is because “merry” has taken on the connotation of, not just jolly, but positively drunk. Armed with that knowledge, we now wish you all a … Merry Christmas.

2020 has been a hellscape, and if Belvedere or Lagavulin help you get through it, pour yourself a glass. We’ll take one, too. If you do not celebrate Christmas, please accept our entirely secular wish for your health, happiness, and prosperity.