In the law, both form and substance matter. At the same time, we frequently see judicial opinions making the point that form should not be elevated over substance. Mottern v. Baptist Health System, Inc., 2024 WL 4097539 (Alabama Sept. 6, 2024), supplies a recent example. In Mottern, the Alabama Supreme Court permitted a plaintiff to
The title is ridiculous, but unfortunately true.
Muldoon v. DePuy Orthopaedics, Inc., is a suit over “hip-replacement surgery conducted in 2007.” 2024 WL 1892907, at *1 (N.D. Cal. April 30, 2024) (“Muldoon II”). Suit was not filed, however, until 2015 – undoubtedly Muldoon is another example of the flotsam and jetsam dredged up by MDL lawyer solicitation.Continue Reading 15 Years After the Fact, This MDL Remand Case Is Still at the Pleading Stage
If you have a good memory, the title of today’s post may seem familiar. That’s because about sixteen months ago, we told you about the appellate court decision in Oregon that reached this conclusion. Now it is official. The Oregon Supreme Court has weighed in and agrees that under Oregon’s product liability statute, hospitals are
Each of these cases is significant enough to merit its own post, but since they came down within a week of each other, we’re discussing both of them here. They are: Gahl v. Aurora Health Care, Inc. ___ N.W.2d ___, 2023 Wisc. LEXIS 137 (Wis. May 2, 2023), and M.T. v. Walmart Stores, Inc., ___ P.3d ___, 2023 WL 3135662 (Kan. App. April 28, 2023).Continue Reading Two New Appellate COVID-Related Developments
Only 37 days until this blogger heads back to her home away from home—Key West. My last trip to the island having ended exactly 105 days ago. So, as we were divvying up this week’s cases, it was a no brainer that I chose the case regarding whether the Lower Keys Medical Center
In his excellent guide to the perplexed young lawyer, The Curmudgeon’s Guide to Practicing Law, co-DDL blog founder Mark Herrmann offers all sorts of good advice. One bit that we particularly remember is that the best case authority is a reversal of a court that ruled the way your opponent wants. It’s nice to
We are back from a weeklong vacation in Greece, with time split between Athens and a lovely, tiny, lightly-touristed island called Symi. We offer these observations:
We wanted avocado toast for lunch a week or two ago. And we had a perfect avocado on the kitchen counter and some nice whole-grain bread in the breadbox. So we cut the avocado in half, “unscrewed” it to leave the pit in one half, then drove the point of a sharp knife into the
The other day we posted about Von Downum v. Synthes, 2012 WL 5463900 (N.D. Okla. Nov. 8, 2012), primarily concerning its fraudulent joinder holding – in accord with the “overwhelming weight of authority” in other states – that a hospital cannot be strictly liable for claimed defects in drugs and medical devices that are used in medical procedures within its walls. Id. at *5. (Note: the defense still lost, but on other grounds).
“Overwhelming” authority, at least when it’s in favor of a pro-defense proposition, is something that we like addressing, so as we hinted in our previous post, we’re looking more deeply into the issue of hospital strict liability. While we almost always represent manufacturers, not hospitals, the notion that they could be strictly liable as “distributors” or “intermediate sellers” of our clients’ products is not a theory that we ever want to see the light of day. The answer’s simple – such liability would inevitably result in hospitals turning around and pointing the finger at our clients. We don’t like seeing defendants pointing fingers at each other. Almost always, the only beneficiary from that is the plaintiff. Not surprisingly, that’s often the precise reason why smart plaintiffs’ lawyers (don’t kid yourself, most of them are) press such theories.
The first thing we normally do in such situations is take a look at the Restatement (Third) of Torts, Products Liability. We find the Restatement’s position in §20 (“Definition of ‘One Who Sells or Otherwise Distributes’”):
[I]n a strong majority of jurisdictions, hospitals are held not to be sellers of products they supply in conjunction with the provision of medical care, regardless of the circumstances.
Restatement (Third) of Torts, Products Liability § 20, comment d (1998). That’s because, in most instances courts have decided that hospitals predominantly provide services, and thus do not qualify as “sellers” subject to strict product liability.
That brings us to the heart of the matter – what are that “strong majority of jurisdictions”?
So we go to the cases.Continue Reading Hospital Strict Liability – A 50-State Survey