When we head into a trial against a personal injury plaintiff, our client, the defendant, occupies the right side of the v. We mean that simply as a matter of word placement. It is Plaintiff v. Defendant, not the other way around (though on appeal the parties can be scrambled). By “right” side, we are not necessarily making a claim as to legal, moral, or aesthetic primacy. Nor are we asking for sympathy. If the case turns on whether tender feelings of jurors will flow toward a grievously ill plaintiff or a defendant corporation, we know that we will finish in second place. That’s okay. As Hyman Roth said, “This is the business we’ve chosen.

But sometimes the sympathy factor can make what is already an uphill run seem nearly impossible. Consider the case of Ward v. LiNa Med. USA, Inc., et al., 2021 U.S. Dist. LEXIS 3096 (S.D.W.Va. Jan. 5, 2021). In Ward, the plaintiff had undergone a hysterectomy via a power morcellator. A morcellator uses spinning blades to mince a uterus and fibroids into smaller pieces in the abdominal cavity, permitting removal through small incisions. Unfortunately, there is a risk to this process. The spinning blades can cause cellular particles to spread. If undetected cancer cells are in the tissue, a morcellator might spread the cancer and “upstage” it (make it much, much worse). That is allegedly what happened to the plaintiff in Ward.

The story gets worse. The plaintiff’s doctor decided on morcellation but did not discuss the risks with the plaintiff. There was no real informed consent. After the arrival of the terrible news that the plaintiff had cancer, the doctor sat down with the plaintiff and her granddaughter and delivered quite a mea culpa. The granddaughter recorded the conversation. The doctor said he “screwed up,” “dropped the ball,” and that the procedure was a “swing and a miss.” He also admitted that he had failed to discuss the risks with the plaintiff, that he should have performed a biopsy before the morcellation to check for cancer, and that he would not have used the morcellator had he known of the cancer.

Can you imagine the plaintiff lawyer’s glee upon hearing that recording?

That is about as sad a case, and as strong a medical malpractice case, as we’ve seen. The plaintiff sued the doctor, who turned out to be a federal employee, thereby bringing the case within the Federal Tort Claims Act. She also sued the hospital. The hospital moved to dismiss the claim against it for failure to comply with West Virginia’s statutory requirement of pre-suit notification before suing health care providers. The hospital also argued that it could not be vicariously liable for the doctor’s malpractice. These arguments were certainly not frivolous. They might even have presented close calls. Still, the calls went in favor of the plaintiff. You’re not really surprised, are you?

That’s bad news for the med-mal defendants, but what’s that to us? We defend product liability, not med-mal, defendants.

Here it comes.

The plaintiff in Ward also sued the manufacturer of the morcellator. The causes of action were design defect, failure to warn, and breach of the implied warranty of merchantability and fitness. The manufacturer moved to dismiss all three claims. The manufacturer’s arguments all had respectable support in the law. But you can see where this going, can’t you?

According to the plaintiff, the design defect was the failure to include a containment bag that would have captured tissue and prevented it from spreading. The defendant argued that inclusion of containment bags was not the norm at the time of manufacture and was not recommended by experts, and that the complaint itself at one point seemed to acknowledge as much. But the court read the complaint generously, leaned heavily on the allegation that the containment bags were feasible, and declined to dismiss pleadings based on a defense of industry norms — at least not without discovery on the issue.

The failure to warn claim alleged that the manufacturer had not disclosed the risk of cancer spread, and had not advised physicians to conduct pre-operative screenings for cancer. The defendant pointed to the learned intermediary rule, and argued that even if additional warnings had been supplied, there was no allegation that the treating physician relied on any information from the manufacturer. Moreover, the physician never discussed risks at all with the plaintiff and there was no reason to believe he would have changed his behavior. The plaintiff won the day on this issue by arguing that the absence of warnings was a reason the doctor never had a complete discussion with his patient. As for warning causation, the court held that the plaintiff in the pleadings “need not lay out at this time exactly how she intends to prove that additional warnings would have prevented her injury.” The failure to warn claim remained in the case.

The defendant manufacturer argued that the breach of warranty claim was devoid of any factual allegations; it merely restated the elements of the cause of action. We’ve personally seen similar substance-less claims in many cases. Whether courts do anything about them varies from jurisdiction to jurisdiction and judge to judge. In the Southern District of West Virginia, courts have held the “claims for strict liability and breach of the implied warranty of merchantability are essential coextensive in products liability actions.” Since the strict liability claims passed muster, so did the warranty claim.

Obviously, any drug and device lawyer calls it a bad day at the office when all of his or her motions to dismiss are denied. But given the facts in the Ward case, one could not call it an unexpected day. Close calls are unlikely to benefit the right side of the v at this point. So the key at the summary judgment stage for the defense will be to make sure it is not a close call.