Our firm represents a couple of companies in the vaginal mesh MDL, so it is difficult for us to write on that, er, fascinating litigation. But one of our clients solved that problem for us by extricating itself from a lawsuit, leaving behind interesting issues about a hospital’s potential exposure in a product liability case.

Today’s case got us thinking about all of the consumer products available that require the purchaser to add water to turn the purchased product into its usable or desired form.   Start with Jell-O.  You add hot and cold water to turn powder in a wiggly, jiggly, sweet snack.  There’s always room for Jell-O.  Or,

We (well, Bexis) doesn’t know all that much about Arkansas.  He’s only been there once – if driving through without stopping on I-55 to Memphis many years ago counts.  Even his massive (excessive?) million-plus word Harry Potter fanfic had only one Arkansas reference in it (about James Potter once being the lead singer for a Hogwarts band called “Black Oak Azkaban”).  Bexis did, however, vote for Bill Clinton twice (and would happily have done so in every election since – peace, prosperity, and budget surpluses look pretty good in retrospect).

But Razorback-related ignorance didn’t stop Bexis from purporting to state Arkansas law recently in our 50-state survey of hospital strict liability.  That post stated:

Arkansas

The Arkansas Supreme Court avoided the issue in Adams v. Arthur, 969 S.W.2d 598, 614 (Ark. 1998) (“we do not decide whether a hospital . . . may be strictly liable as a supplier”).  The holding in Adams – that the strict liability claims were barred by the statute of limitations applicable to malpractice claims – is suggestive that no separate cause of action for strict liability exists, but that’s not the ruling. There’s also mention of a holding rejecting hospital strict liability in Kirkendall v. Harbor Insurance Co., 698 F. Supp. 768, 770 (W.D. Ark. 1988), but it’s in a procedural history discussion.  If somebody has access to the order in Kirkendall, please send it to us.

That turned out well (no, nobody sent the missing Kirkendall order, but that hardly matters anymore).  Apparently, Bexis missed the crucial case, at least according to some recent opinions that we’ve learned about on this topic.  See Wages v. Johnson Regional Medical Center, ___ F. Supp.2d ___, 2013 WL 120888 (W.D. Ark. Jan. 9, 2013); Shepherd v. Baptist Health, ___ F. Supp.2d ___, 2012 WL 6811076 (E.D. Ark. Nov. 30, 2012); Gunn v. St. Vincent Infirmary Medical Center, 2012 WL 6811786, *1 (E.D. Ark. Nov. 29, 2012).


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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.


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