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Quick puppy update:  the standard poodle puppies, one of which will be our first-ever show dog in a house filled with canine and feline rescued ragamuffins, are four weeks old today.  All eight are fat and healthy, despite a scare with one white male puppy a week or so ago.  We will meet them this weekend and will soon know which will be ours.  We remain deliriously excited and stubbornly in denial about the havoc this will wreak on our well-ordered life. 

We bolster ourselves with well-ordered legal decisions, like today’s defense summary judgment victory.  In Eiter v. Wright Medical Technology, Inc., 2022 WL 4104559 (D. Ariz., Sept. 8, 2022), the plaintiff alleged that she was injured by the defendant’s artificial hip.  Her complaint included the usual litany of product liability claims, and the defendant moved for summary judgment on the failure-to-warn claims sounding in both negligence and strict liability and on the claim for punitive damages. 

Failure-to-Warn Claims

To prevail on failure-to-warn claim under Arizona law, as the court explained, a plaintiff must prove that an inadequate warning proximately caused her injuries (so-called “warnings causation”).  Eiter is a prescription medical device case, subject to the learned intermediary doctrine, so the plaintiff was required to adduce evidence that a different or stronger warning would have changed her surgeon’s decision to implant her with the artificial hip.  One wrinkle:  Arizona has adopted a heeding presumption that applies to strict liability failure-to-warn claims; in other words, “a plaintiff is entitled to a presumption that the injury would have been avoided with an adequate warning.”  Eiter, 2022 WL 4104559 at *2.  But the presumption is rebuttable:  if the defendant adduces evidence that the learned intermediary would not have heeded an adequate warning, the burden shifts back to the plaintiff to prove “warnings causation.” 

Eiter was a failure-to-read case.  The defendant argued that the plaintiff could not prove that an adequate warning would have altered her doctor’s prescribing decision because the doctor had not read the Instructions for Use (“IFU”) that accompanied the product, and because the doctor was already aware of the relevant risk (injury from metal debris).   The defendant cited the doctor’s deposition, in which he testified that he did not recall reading the IFU, and that he was aware of the risk of injury “from increased production of wear particles” causing damage to the bone, and the court held that this testimony was sufficient to rebut the heeding presumption. 

The plaintiff argued that, while the doctor did not remember reading the IFU, he had “since reviewed it and found it lacking,” id. at *3, but the court held that this did not create a genuine issue of material fact.   Moreover, the court held, the plaintiff “produce[d] no evidence to show that [the doctor] was not already aware of the risks that [were] alleged to cause [the plaintiff’s] injury.”  In his deposition, the doctor testified that he was “of course aware of the risks posed by metal debris.”  After the fact, the doctor signed an affidavit in which he stated that he was not aware of failures of the plaintiff’s specific device from tissue reactions to metal debris.   The court held, 

Although [the doctor] may not have been aware of the particular failures with Defendant’s product, . . . .he was aware generally of the risks that such products presented.  As such, there is no evidence showing that a specific warning about the risks that [the doctor] already recognized would have changed his decision” to implant the defendant’s artificial hip. 


(In an interesting aside, the court considered the defendant’s argument that the affidavit should not be considered at all because it was a “sham affidavit”  Under the “sham affidavit doctrine” (one of our favorites), a party opposing summary judgment cannot create fact issues by crafting an affidavit that contradicts the affiant’s sworn deposition testimony.  In this case, the court held that the affidavit did not contradict the doctor’s deposition testimony, so it was not a “sham” and would not be disregarded.)

Bottom line:  because there was no evidence that the doctor had read the IFU, and because he already knew of the relevant risk, the plaintiff failed to create a fact issue on the causation element of the failure-to-warn claims.  

Punitive Damages

To prevail on a claim for punitive damages under Arizona law, a plaintiff must prove that the defendant “consciously and deliberately acted with an evil mind.”  Id.  (internal punctuation and citations omitted). The plaintiff argued that the defendant’s decision to continue selling the artificial hip, even though it was aware of the risks associated with the device, satisfied the “evil mind” standard.  The court disagreed, holding that “such knowledge only deserves punitive damages when the risks would incur inevitable or highly probable harm,”and the plaintiff had not cited evidence that “the harm was highly probable or inevitable.”  Id. (You can read more about punitive damages standards here.)

Eiter is a tidy little decision, no less satisfying because the correct result was obvious.  We’ll talk to you soon.  In the meantime, stay safe out there.