Although they have nothing to do with the Affordable Care Act, health-care-related so-called “death panels” do exist.  These panels are operated by state agencies and private health insurance companies, and they decide whether to reimburse as “medically necessary” (or some similar definition) any type of medical care that comes into question.  They’re an unfortunate necessary

There aren’t that many cases applying Wyoming law, but the recent Tolman v. Stryker Corp., ___ F. Appx. ___, 2016 WL 683315 (10th Cir. Feb. 19, 2016), does – and we like its reasoning.  The injured plaintiff was in an unrelated accident and tore up his leg pretty badly (comminuted fracture).  He had an intramedullary nail inserted to hold everything together while he healed, but since this is a product liability case, that didn’t happen.  Instead plaintiff suffered a “[f]ailed gamma nail with nonunion.”  Id. at *1.

Plaintiffs (husband and wife) tried to get by with some version of a malfunction theory/res ipsa loquitur, because they “never deposed their designated experts.”  Id. at *2.  Bad move.  The trial court granted summary judgment and the Tenth Circuit eventually affirmed. The mere fact that an implant – particularly a weight bearing implant – broke does not create a jury question that it was defective.

Continue Reading A Plaintiff Needs More Than a Broken Device To Win

And what is so rare as a day in June?”   How about a drug and device law opinion out of Wyoming?  We do not often get the chance to discuss Wyoming products law.  That is not terribly surprising, given that Wyoming is the least populous state in the union.  When we clicked on the Wyoming entry in our handy index (located on the lower right side of our web page), we came up with one single solitary entry, dated August 24, 2007.  In that ancient post, we applauded the Rohde case, in which the Wyoming Supreme Court recognized the learned intermediary rule.  But learned intermediary was a relatively small part of the Rohde case.  As we said at the time: “The majority of the opinion consists of a cogent discussion of why simply pointing to a broken implant doesn’t establish either a design or manufacturing defect.”  All well, and good, as far as that goes.

It is nothing short of astonishing how many product defect cases get filed, survive motion practice, generate years of expensive, painful discovery, and get plopped down in front of a jury with absolutely no evidence of any actual defect.  All we know is that a product was used and something bad happened.  The fact scenario usually does not rise to the level of res ipsa loquitur (that is, the circumstances speak for themselves and make it pretty clear something went kablooey with the product – such as when a mouse races out of the soda bottle, eventually raining money all over some lucky plaintiff lawyer).  Nevertheless, some courts wave the no-defect case along to the jury, praying for a settlement to remove the annoyance from the docket.  Such a judicial ruling (or non-ruling) is bad for the system.  You might even call it defective.

Wyoming is one of those states that affords a plaintiff an opportunity to get to a jury on the defect issue even absent direct evidence of an actual defect. A plaintiff can elude summary judgment via an “inference of defect.”   What is that, you ask?  The plaintiff can invoke the inference of defect by showing that there “are no other reasonable causes for the product’s failure” (quoting Rohde).    How can a plaintiff rule out alternative causes?   That cannot be easy.   Or it shouldn’t be, given how complex medical and science issues are.  Perhaps a plaintiff attorney will argue for exclusion of alternative causes on the ground that there is nothing to connect them to the alleged injury save their existence.  Fine, but that is probably true for the product as well.  One way to exclude alternative causes is to hire an expert who will happily trade his or her conscience at a rate of $600 per hour and happily rule out any alternative cause in sight.  But absent such an irredeemably flexible expert, ruling out alternative causes can be a challenge.  The reality of things seldom lends itself to such a simple exercise in differential etiology. Moreover, the reality of things might simply be that there was no defect in the product.  Sometimes bad things happens for no reason, at least no reason that would support a plaintiff verdict. 
Continue Reading Wyoming Federal Court Dismisses Hip Case for Lack of Defect

We pointed out recently that 32 states had recognized the learned intermediary rule either by statute, decision of the highest court, or both. We’re pleased to announce that this number has increased to 33 with the addition of Wyoming. In Rohde v. Smiths Medical, ___ P.3d ___, 2007 WL 2376613 (Wyo. Aug. 22, 2007),