Today’s case, Hartney v. Zoetis, Inc., 2025 WL 2924661 (D.N.J. Oct. 15, 2025), is about a canine medicine allegedly gone wrong. But lest you think the DDL blog has gone to the dogs, this case addresses issues such as preemption and learned intermediary that are key in cases with thumbed, supposedly sapient, biped plaintiffs.
Mind you
You know it’s going to be an interesting ride when the appellate brief reads like a conspiracy theory starter pack. Which is how we read the issues raised on appeal in Thelen v. Somatics, LLC, — F4th –, 2025 WL 2749888 (11th Cir. Sep. 29, 2025): erroneous entry of summary judgment on design
Today’s guest post is from Dechert’s Brooke Meadowcroft who brings us her take on an unfortunate learned intermediary ruling out of Illinois. As always, our guest posters deserve 100% of the praise (and any of blame) for their posts. Not that we expect the latter.
*******
The learned intermediary doctrine is the elegant legal principle
Today’s post is our second installment about a case in the District of Massachusetts alleging injury from a Class III medical device. We blogged about it this spring when the court dismissed plaintiff’s claim that an implanted defibrillator and associated leads caused her numerous, unnecessary shocks. The court dismissed that complaint based on straightforward, premarket approval preemption. But the court granted plaintiff leave to amend, and she moved to file an amended complaint. Today’s decision, Summers v. Medtronic, Inc., 2025 WL 2201110 (D. Mass. Aug. 1, 2025), denied plaintiff’s motion for leave based on the learned intermediary rule in Massachusetts. It’s a helpful decision because it applies the learned intermediary rule at the 12(b)(6) stage in the context of a device recall.Continue Reading Summers Round 2: Learned Intermediary Rule Applies to Claim Based on Device Recall
Sometimes opinions go entirely in favor of the defense, analyzing numerous, independent bases for the dismissal of a complaint. Today’s decision, Doyle v. Bayer Corp., 2025 WL 1666261 (W.D. Wash. June 12, 2025), is definitely one of those. It is a perfect example of what should happen when a plaintiff files a generic, bare-bones complaint in a prescription medical product case.
Plaintiff had an intrauterine device (IUD) implanted, and after about two years was informed that the IUD had likely been expelled from her body. More than ten years after that, plaintiff obtained an x-ray for a persistent cough. Doctors suspected that a shadow shown on the x-ray in the plaintiff’s abdomen was the IUD. Plaintiff subsequently had surgery to remove the IUD, and she and her husband then filed suit against the manufacturer. Plaintiffs asserted five common law product liability claims and a sixth for unfair business practices.Continue Reading Belt and Suspenders – Dismissal in the Western District of Washington
Today we offer a peek at A. Twerski, “A Quarter Century after the Products Liability Restatement: Reflections,” 90 Brooklyn L. Rev. 1027 (Summer 2025). The “Restatement” under discussion is the Restatement (Third), Products Liability, and the “A. Twerski” is, of course, Aaron Twerski, the sole surviving reporter for that Restatement. Professor Twerski has written this retrospective law review
The Butler Snow contingent on the DDL blogging team had nothing to do with this post.
New York law is surprisingly good for defendants. Or maybe we’re jaded by bad experiences in other jurisdictions, and New York law manages to seem fair only by comparison. Certainly, we’d rather be in a courtroom in New York
The word of the day is targeted. Targeted discovery on a targeting device and a district court laser-focused on the failure to warn causation target. The end result is a decisive defense win on failure to warn. See In re Biozorb Device Prods. Liab. Litig., 1:23-cv-10599-ADB, No. 1:22-CV-11895-ADB, 2025 WL 509834 (D. Mass. Feb.
To say that we’re not big fans of the “consumer expectation” test in prescription medical product liability litigation is a gross understatement. That supposed “test” for design defect – the Third Restatement expressly ditched it as a separate test, Restatement (Third) of Torts, Products Liability §2, comment g (1998) – exists primarily to let plaintiffs claim they never expected that any product would ever injure them, no matter how badly they misused it. So again and again, we’ve decried the consumer expectation “test” on the Blog.
But at least in some states, the learned intermediary rule ameliorates the consumer expectation test in our sandbox – by considering the relevant “consumer” to be the physician to whom a drug or device warning is directed. Generally speaking, consumers of prescription medical products lack any expectations about the performance and safety of those products other than what their physicians tell them. Thus, quite a few courts have held that, in the context of prescription medical products, the physician is actually the “consumer” or the “intended user” of such products. Continue Reading Learned Consumer Expectations