Plaintiffs love sales representatives. They love to use them to try to keep cases in state court—naming them as non-diverse defendants. They love to try to use them to get around preemption—claiming a direct duty from the rep to the plaintiff. And they certainly love making sales representative statements and conduct a focal point of
We have had occasion over the years to opine on cases involving allegations against sales representatives who are present in the operating room—a not uncommon practice when medical devices are being used. While the practice is not uncommon, what is rare are instances where a sales representative participates in the surgery. Rare, but not non-existent. Where the line is drawn between presence and participation, and possibility liability or not, is extremely fact sensitive. And as the court in Owens v. Boston SCI Corp. concluded, in the absence of facts, conclusory allegations of participation are not enough. 2022 U.S. DIST. Lexis 212427, *7 (E.D. Mo. Nov. 23, 2022).
Plaintiff underwent surgery involving implantation of a pelvic mesh medical device. Plaintiff alleged complications following surgery and filed a lawsuit against the manufacturer alleging design defects and against one of the manufacturer’s sales representatives for failure to warn both plaintiff’s surgeon and plaintiff. The manufacturer removed the case to federal court alleging the sales representative, who was not diverse to plaintiff, was fraudulently joined. Plaintiff moved to remand.Continue Reading Sales Representative’s Presence in Operating Room Not Enough to Beat Fraudulent Joinder
California state court is not the place most products liability defendants want to end up. Unfortunately, today’s case had to stay in state court because plaintiff sued the defendant’s device representatives who had direct contact with the plaintiff. The reps, like plaintiff, were California residents and destroyed diversity jurisdiction. The decision, however, in James v.
The heat waves of summer haven’t been gone long enough for those of us in the North East to be longing for 90° days anytime soon. But we have no problem reaching back to the dog days of summer for today’s decision. Which got us thinking, what are the dog days of summer? Days that
Manufacturers supervising medical doctors? In two words, they don’t. Yet plaintiffs, particularly in cases where preemption forecloses more normal product liability claims, try to get courts to impose such duties. We took a look at that issue back during the early days of the blog, when it was still a Bexis/Herrmann operation, in our September
So said the Connecticut state appellate court last week. It’s a pretty simple equation. Like No shoes, no shirt, no service. No pain, no gain. No risk, no reward. In other words, you can’t get one without the other. In Ferrari v. Johnson & Johnson, Inc., — A.3d —, 2019 WL 2167849
Medical device sales representatives are often present in the operating room during surgical procedures, especially with procedures involving orthopedic devices. With those kinds of devices (and others), the hospital typically contacts the sales representative in advance, and he or she is charged with delivering the device in the specified size and providing any specialized instrumentation