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We have had occasion over the years to opine on cases involving allegations against sales representatives who are present in the operating room—a not uncommon practice when medical devices are being used.  While the practice is not uncommon, what is rare are instances where a sales representative participates in the surgery.  Rare, but not non-existent.  Where the line is drawn between presence and participation, and possibility liability or not, is extremely fact sensitive.  And as the court in Owens v. Boston SCI Corp. concluded, in the absence of facts, conclusory allegations of participation are not enough. 2022 U.S. DIST. Lexis 212427, *7 (E.D. Mo. Nov. 23, 2022).

 Plaintiff underwent surgery involving implantation of a pelvic mesh medical device.  Plaintiff alleged complications following surgery and filed a lawsuit against the manufacturer alleging design defects and against one of the manufacturer’s sales representatives for failure to warn both plaintiff’s surgeon and plaintiff.  The manufacturer removed the case to federal court alleging the sales representative, who was not diverse to plaintiff, was fraudulently joined.  Plaintiff moved to remand.

Plaintiff’s first theory of negligence against the sales representative was that by his “participation” in the implantation surgery, he “assumed a duty to advise the implanting physician with reasonable care,” which he breached “by not warning the physician about the risks he knew or should have known about.”  Id. at *5-6.  Plaintiff tried to argue that the court should apply state pleadings standards to its analysis, but even in diversity federal courts apply federal pleadings standards.  So, where a plaintiff relies on only conclusory allegations against a non-diverse defendant, dismissal on the grounds of fraudulent joinder is warranted. 

The key allegation against the sales representative is that he had actual or constructive knowledge of the alleged defects or risks.  But the complaint contains no factual assertions to back up plaintiff’s “formulaic recitation of an element needed to support her negligence claim.”  Id. at *7.  In other words, plaintiff failed to allege facts to support that the sales rep knew or had reason to know about the alleged risks.  Plaintiff cited two cases where sales representatives were kept in the case at the pleading stage for having assumed a duty via their participation in a surgery.  But in both cases, plaintiff provided detailed factual allegations regarding the sales representatives “actively assisting or advising” during the surgery. Id. at *10.  In Owens, however, the only allegation is that the sales representative’s job included giving advice to surgeons which would require an inference that the sales representative actively advised the surgeon in this case.  An inference the court was unwilling to draw.  Finally, plaintiff also failed to make any allegations to support her claim that even if the sales rep had assumed a duty that he failed to exercise reasonable care in performing that duty.  Id. at *12-13.  In fact, plaintiff made no allegations representing that the sale rep “gave any specific advice affecting the manner of implantation.”  Id. at *14.  The court was left to assume that plaintiff based her claim on the rep’s presence at the time of surgery.  But with no factual allegations to support knowledge, duty, or breach—mere presence was not enough to state a colorable claim against the rep.

Plaintiff’s second theory of liability against the sales representative was that he was a negligent “seller” of the device.  Under Missouri law, a seller can be liable for injuries sustained from a defective product which “a reasonably prudent seller should have discovered . . . before selling the product to the consumer.”  Id. at *15.  The court put aside the issue of whether the sales rep could even be considered a seller because this claim fails for the same lack of factual allegations regarding the sales rep’s knowledge.  Id. at *15-16.  In fact, plaintiff did not plead that the manufacturer knew or should have known of the alleged risks.  Therefore, it “strains credulity” that its employee should have known about them.  Id. at *17. 

Without factual support, plaintiff did not state a colorable claim against the sales representative who the court, therefore found to be fraudulently joined.  Because the pleading deficiencies also failed to meet TwIqbal standards, the claims against the sales representative were also dismissed.  And the case stays in federal court.