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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

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Today’s case is Thelen v. Somatics, LLC, 2023 WL 3338221 (M.D. Fla. May 5, 2023).  It is a straightforward products liability case involving a medical device used in electro-convulsive therapy.  Plaintiff alleges the device caused a permanent neurological injury, memory loss, and brain damage and that the manufacturer is liable for failure to warn

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Plaintiffs tend to assert a bunch of different claims.  For prescription medical device cases, setting aside preemption, our experience is that plaintiffs do best—that is, avoid summary judgment and directed verdict—with design defect (strict liability or negligence) claims.  One reason for that is that it tends not to be hard to make up some theory,