This is from the non-Dechert part of the Blog.

Over the years, the Blog has had many, many posts related to the issue of whether Pennsylvania recognized any form of strict liability in product liability actions against prescription medical products.  In addition to the fact that several of the principal authors of the Blog have been Pennsylvania lawyers, Pennsylvania has long been one of the focal points of litigation against the manufacturers of these products and some of the non-Pennsylvania lawyers among us have also spent plenty of time litigating product liability cases in Pennsylvania courts.  Even though the rejection of strict liability in favor of negligence has been clear for decades (see here for some history), plaintiffs have often tried to get courts to give them a path to recovery that did not require a showing of negligent conduct by the defendant.  Indeed, when courts created a novel cause of action on appeal in Lance, it was connected to the rejection of strict liability design defect and warnings theories (and the prescribing physician’s testimony negating proximate cause for failure to warn).  Yet, the appellate courts stood firm that Pennsylvania did not have strict liability for claims against prescription drugs.    

In the decade since Lance, we have covered a number of developments on this issue, including the issue of whether implantable medical devices would get the same treatment.  See here, here, and here, among many posts.  This included the Third Circuit referring the direct issue to the Pennsylvania Supreme Court in Ebert.  However, Ebert resolved before the Pennsylvania Supreme Court ruled, leaving the debate alive.  It was not much of a debate, as the vast majority of state and federal courts to consider the issue treated prescription implantable medical devices like prescription drugs and refused to extend strict liability to them.  The stubborn minority got started with a really bad decision from the Western District of Pennsylvania in a pelvic mesh case called Schrecengost, discussed here, which was followed in a handful of other pelvic and hernia mesh cases in federal courts over the next few years.  Why should cases involving surgical mesh, a prescription implantable medical device, get singled out for special treatment when it comes to Pennsylvania law?  There is no legal reason why they should.

Almost a year ago, in a hernia mesh case pending in the Middle District of Pennsylvania, the Magistrate Judge issued a report and recommendation that, among other things, predicted that the Pennsylvania Supreme Court would reject strict liability by applying comment k to implantable medical devices.  Douglas v. Atrium Med. Corp., No. 3:23-CV-0747, 2023 WL 8643638 (M.D. Pa. Dec. 11, 2023).  When that R&R identified contrary authority, it cited two surgical mesh decisions from Pennsylvania federal courts (one discussed here), each of which relied heavily on Schrecengost.  Despite its prediction that the strict liability claims were not viable, it noted what it thought was a still pending certified question in Ebert—the case had actually resolved much earlier, see Ebert v. C.R. Bard, Inc., 2021 WL 9950511 (3d Cir. Nov. 10, 2021)—and offered recommendations for outcomes other than dismissal with prejudice.

More recently, the district court ruled on the motions to dismiss that were the subject of the R&R.  Conveniently for us, the ruling on strict liability was the only one as to which a party had objected or not conceded the issue in briefing.  Douglas v. Atrium Med. Corp., No. 3:23-CV-0747, 2024 WL 4364950 (M.D. Pa. Sept. 20, 2024).  The district court rejected the plaintiffs’ objection on strict liability and adopted the R&R on this issue without much fanfare:  “The court agrees, and dismissal of Counts I and II is appropriate.”  Because other counts remained and recognizing that the Ebert certified question was never going to be answered, the court also considered plaintiffs’ request that it certify an interlocutory appeal to the Third Circuit to present the issue of strict liability for prescription implantable medical devices under Pennsylvania law.  (That would be the same Third Circuit that had certified a question to the Pennsylvania Supreme Court rather than make an Erie prediction on its own.)  Part of the test for certifying an interlocutory appeal under 28 U.S.C. § 1292(b) is whether there is “substantial ground for difference of opinion.”  The Douglas court found that there was not:

Here, the court finds that no substantial ground for difference of opinion as to whether plaintiffs’ strict liability claims should be dismissed.  As explained above, the appellate courts of Pennsylvania have ruled that the law supports dismissal.  Additionally, district courts within this judicial district have also rules that implanted medical devices are exempted from strict liability.

Id. at *4.

This all means that, despite some adverse decisions from federal courts in Pennsylvania, including in the same district as Douglas, the latest word on whether Pennsylvania law supports strict liability claims against an implantable medical device is that there is no substantial ground to conclude that it does.  We have been saying that for more than a decade, but it is nice to have a federal judge say that in late 2024.