The long-planned New York trip is in the books, and it was a smashing success. The Drug and Device Law Dowager Countess (almost 88) was ecstatic throughout, and all of the puzzle pieces meshed seamlessly. We can report that The Music Man is a serviceable revival of a silly, illogical musical (most of our classic
If the pelvic mesh litigation ever ends, the tongue of history will tell a tale of specious plaintiff theories that hoodwinked judges and juries into condemning good products. Plaintiffs extracted millions of dollars and erased product lines by cobbling together irrelevant workplace material handling sheets, counterfactual stories in which the FDA does not exist, and…
Ponder the following: A man attends an exercise class at a facility run by a local religious institution. Assume that he belonged to this facility, wanted to attend an exercise class because his fitness was less than optimal, and was informed of the need to get medical advice before starting a new and potentially demanding exercise program. He had a heart attack and collapsed right after leaving the class. Assume that the heart attack was not a total surprise given his health, but that he had not had a heart attack before and had not informed the people running the class of any particular risk. The class instructor rushed to the man’s aid while others called 911. The instructor was certified in cardiopulmonary resuscitation (“CPR”) and did her best to help the man. When paramedics arrived, they assumed care of the man, but he died despite their best efforts.
Based on these facts and assumptions, answer this question:
Who should the man’s estate sue over his death?
A) Nobody. B) The class instructor. C) The religious institution. D) The entities that operate the 911/EMT system.
If you answered other than “A,” then you might need to examine your propensity to blame others.
Add in the following to the scenario presented above: The class instructor tending to the man did not utilize an automated external defibrillator (“AED”) that she knew was present and was certified in using. She brought the AED to the man’s side, but elected not to use it because, in her judgment, he was having a seizure and not a heart attack.
Based on these additional facts, answer these questions:
1. Who should the man’s estate sue over his death?
A) Nobody. B) The class instructor. C) The religious institution. D) The entities that operate the 911/EMT system. E) The company that sold the AED and offered training to purchasers.
2. If the man’s estate already sued the religious institution over his death, who should the defendant bring in via third-party complaint?
A) Nobody. B) The class instructor. C) The entities that operate the 911/EMT system. D) The company that sold the AED and offered training to purchasers.
In Wallis v. Brainerd Baptist Church, No. E2015-01827-SC-R11-CV, 2016 Tenn. LEXIS 920 (Tenn. Dec. 22, 2016), the estate sued the church that ran the gym and then both turned their attention to the seller of the medical device that was not used. It is often said that bad cases make bad law, but sometimes egregiously over-reaching cases can make good law. Ultimately, Wallis fits into the latter category. A contrary result, which would have allowed a negligence or contract claim against the seller of a device that was not used with the decedent, would have been bad, maybe bad enough to have been mentioned in our bottom ten post last week.…