Relation-Back Doctrine Applied, Reversing Jury Verdict against Manufacturer

Recently, the First Circuit affirmed the decision of the District of Massachusetts in granting manufacturer’s post-verdict motion to alter or amend judgment, reversing judgment entered upon a jury verdict, by applying the relation-back doctrine. Coons v. Industrial Knife Co., No. 09-1791, 2010 WL 3516849 (1st Cir. Sept. 10, 2010) [PDF]. Three years after William Coons (“Coons”) was injured by an industrial paper-cutting knife while on the job, he filed suit against A.F. Chapman Corporation who he alleged manufactured and distributed the the knife that caused his injuries. A year later, after pre-trial discovery, A.F. Chapman sought, and was granted, leave to file a third-party complaint against Industrial Knife, alleging that Industrial Knife was the manufacturer and distributor of the knife. Almost two years after filing his original complaint, Coons sought, and was granted, leave to amend his complaint to assert claims against Industrial Knife.

Industrial Knife answered, asserting the statute of limitations as a defense. Two years later, Industrial Knife filed a motion to dismiss based upon the statute of limitations. The District Court denied its motion as untimely and the case went before a jury. The jury found in favor of Coons, awarding him $350,000 in compensatory damages. At the close of Coons’ case, Industrial Knife moved for judgment as a matter of law based upon the statute of limitations; this motion was also renewed before the jury deliberated. The District Court denied these motions without prejudice.
Following the return of the jury verdict, Industrial Knife filed a motion to alter or amend the judgment, arguing that Coons’ claims against it were time-barred. The District Court agreed and entered judgment for Industrial Knife. Coons appealed. The First Circuit first found that since Coons’ claims against Industrial Knife were filed well after three years from the date of the accident — when the cause of action accrued, Coons could only prevail if his amended complaint against Industrial Knife “related back” to his original complaint that was filed within three years of the date of the accident. There are three requirements that must be met for an amended complaint to “relate back” to the original complaint when a new party is added — the claim must arise out of the same conduct, the new party must have had some notice, and new party either must have known or should have known that the action could have been brought against it.
The First Circuit agreed with Industrial Knife that it had no notice of the action within the applicable time frame. Success in making this argument was attained only after defense counsel persisted in making the argument throughout the life of the case. A teaching point for all defense counsel.

South Carolina Supreme Court Re-Issues Opinion in which it Reversed $18 Million Products Liability Verdict

We here at Abnormal Use previously reported on that on March 15, 2010 the South Carolina Supreme Court reversed an $18 million jury verdict against Ford Motor Company, finding that the trial court erred in admitting the testimony of two of the plaintiffs’ experts and admitting evidence of prior sudden acceleration accidents. Watson v. Ford Motor Co., No. 26786, — S.E.2d —, 2010 WL 916109 (S.C. Mar. 15, 2010). Yesterday, the South Carolina Supreme Court “reissued” this opinion, substituting the most recent opinion in the place of the one cited above, after considering Plaintiffs’ and Ford’s motions to clarify and Plaintiffs’ motion for rehearing, all of which were filed after the original opinion. Watson v. Ford Motor Co., No. 26786 (S.C. Sept. 13, 2010).

The difference between the two opinions — the March 15, 2010 opinion and the September 13, 2010 opinion — is that the Court considered an additional issue on appeal presented by Ford. After the jury returned a verdict in favor of Plaintiffs at the trial of this matter, Ford filed post-trial motions, including one for judgment notwithstanding the verdict (“JNOV”). The trial court denied all of Ford’s post-trial motions and on then appeal, it appears that the Court did not consider whether the trial court erred in denying Ford’s JNOV motion. On Plaintiffs’ and Ford’s motions for reconsideration, the South Carolina Supreme Court considered this issue and found that the trial court did err in denying Ford’s JNOV motion.

The September 13, 2010 opinion included its previous analysis of all the issues in the March 15, 2010 opinion that found the trial court erred in qualifying Bill Williams as an expert on cruise control, qualifying Dr. Anderson as an expert on alternative designs, finding that Dr. Anderson’s theory regarding EMI as the cause of the sudden acceleration met the reliability requirements, and admitting evidence of similar incidents involving sudden acceleration in Explorers. In addition to the above, in the re-issued opinion, the Court found that because Plaintiffs’ experts did not present admissible evidence, they “failed to present a case for products liability” because there was no evidence that the cruise control system was defective or unreasonably dangerous. Further, the Court found that Plaintiffs “failed, as a matter of law, to prove an alternative feasible design with respect to the vehicle’s cruise control system” and were entitled to judgment notwithstanding the verdict. The South Carolina Supreme Court therefore found that as a result of all four of the trial court errors, it must reverse the jury’s verdict and enter judgment in favor of Ford.

Justice Costa M. Pleicones, who concurred in a separate opinion in the March 15, 2010 decision, now concurs in part and dissents in part in a separate opinion. Justice Pleicones concurred, as before, with the points made by the majority, merely suggesting that he would have reached the same result by a different route. However, in the September 13, 2010 opinion, Justice Pleicones dissents with the new part of the opinion that finds that Ford was entitled to JNOV, stating that there was evidence in the record to support the trial court’s denial of Ford’s JNOV motion. That evidence consisted of a colloquy between Dr. Anderson and Ford’s counsel in which Dr. Anderson opined that to a reasonable degree of engineering certainty that electrical interference was the cause of the sudden acceleration. Justice Pleicones stated that he would have reversed and remanded.

Finally, as noted by Brain Comer of South Carolina Products Liability Law Blog yesterday, the Court added an additional footnote in its discussion of whether the court erred in admitting Dr. Anderson’s testimony as to both an alternative feasible design and his EMI theory. This footnote cited to the recent opinion in which the Supreme Court adopted the risk-utility test as the exclusive test in products liability design cases — which we discussed here.

What, then, is the significance of this “re-issued” opinion? The prior opinion, as is this one, was instructive on the duties of the trial court as a gatekeeper of the admission of evidence and vividly illustrated how critically important competent expert testimony is to the prosecution of products liability cases. What the most recent opinion adds is that when the appellate court properly strips improper expert testimony from the case, they stand ready to not only remand for a new trial but also outright reverse a trial court’s decision and dismiss it.

Risk-Utility Analysis Applied in Favor of Subrogee

On defendant manufacturer’s motion for summary judgment, the Middle District of Pennsylvania recently applied the risk-utility analysis, finding in favor of Plaintiff, Donegal Mutual Insurance Company (“Donegal“), subrogee of its insured’s claim that a electric clothes dryer manufactured by Electrolux North American (“Electrolux“) was defective. Donegal Mut. Ins. Co. v. Electrolux N. Am., 2010 WL 3169291 (M.D. Penn. Aug. 10, 2010). In November 2006, Donegal’s insured’s house caught fire from a dryer manufactured by Electrolux 10 years earlier due to its bearing assembly design. Donegal instituted a subrogation action against Electrolux, asserting causes of action for negligence, strict liability, and warranty/breach of contract. Electrolux moved for summary judgment on Donegal’s strict liability claim.

On a motion for summary judgment, a court in Pennsylvania first determines “whether the evidence is sufficient for purposes of the threshold risk-utility analysis, to conclude as a matter of law that the product was not unreasonably dangerous.” Id. (citing Surace v. Caterpillar, Inc. , 111 F.3d 1039, 1044 (3d Cir. 1997). If the analysis favors the manufacturer, the product is not unreasonably dangerous and the the plaintiff’s claim does not go to a jury.

Judge Yvette Kane was meticulous in her analysis of each of the 7 factors of the risk-utility test, finding six of the seven factors weighted in favor of plaintiff and against the manufacturer. First, the parties conceded that the clothes dryer had a high utility to its users — only factor in favor of Electrolux. Second, the court was not able to evaluate the statistical rate of injury because Electrolux had not provided it with the number of units it sold similar to the one at issue. Therefore, the court found in favor of the plaintiff on the second factor due to the extent of injury a fire from a dryer could cause. Third, the court found that the bearing assembly design that caused the fire at issue could have been designed safer, finding in favor of plaintiff on this factor. Fourth, the court found in favor of plaintiff because Electrolux had already replaced the bearing assembly design with a different assembly in its newer models. Fifth, the court found that an ordinary user could not avoid the danger posed by an internal mechanism that could cause fires. Therefore, this factor went in favor of plaintiff. Sixth, similar to the fifth factor, the court found insufficient warning of the dangerous condition to an ordinary consumer. Finally, the court found the burden of spreading loss is better placed on the manufacturer.

As a result of the court’s analysis, it found that the risk of harm from the bearing assembly design outweighed its social utility and denied Electrolux’s motion for summary judgment. It appears that this type of test and analysis will often go in favor of plaintiff when the “defect” is an internal mechanism that could have been designed differently and the manufacturer gave no notice to the consumer. Further, the last element, spreading the loss, will almost always go in favor of an plaintiff versus manufacturer. Clearly, manufacturers moving for summary judgment in jurisdictions applying this test face a distinct disadvantage.

Third Circuit Affirms Summary Judgment in Favor of Ford as a result of Plaintiff’s Lack of Expert Testimony

Have you ever thought that traveling in a vehicle going above 65 miles per hour could cause cancer? One Pennsylvania resident, Ted McCracken (“McCracken”), thought so and asked the Eastern District of Pennsylvania to award him damages as a result of such alleged injury. Pro se Plaintiff McCracken filed an action against Ford Motor Company asserting that he contracted thyroid cancer as a result of the insufficient protection Ford windshields provided from ambient radiation in the air that increases to dangerous levels inside a cabin when a vehicle travels at speeds in excess of 65 miles an hour. McCracken v. Ford Motor Co., No. 09-3995, 2010 WL 3010304 (3d Cir. Aug. 3, 2010) [PDF]. McCracken asserted eight causes of action, including strict products liability and defective design.

Ford filed a motion to dismiss on a number of grounds and the District Court of Pennsylvania dismissed all McCracken’s claims, except for strict products liability and defective design, and entered a scheduling order. Pursuant to this scheduling order, McCracken’s expert report was due on April 6, 2009. After this deadline had passed, McCracken filed a motion for an extension of time to retain an expert and a motion for the appointment of an expert under Fed. R. Evid. 706. The District Court denied his motions and Ford moved for summary judgment based upon McCracken’s lack of expert testimony. The District Court granted summary judgment in favor of Ford and McCracken appealed.

On appeal, McCracken asserted that he submitted sufficient evidence to survive summary judgment even without the testimony of an expert. This evidence included data regarding environmental radiation, a list of books and articles on radiation, the deposition testimony of a representative of the Pennsylvania Department of Environmental Protection, and affidavits from him and his mother stating that they observed increased readings on a Geiger meter when the vehicle accelerated. The Third Circuit found that this “evidence” was not enough to withstand summary judgment on the cause of McCracken’s cancer or the defective design of Ford’s windshields.

McCracken’s second argument on appeal is that the District Court erred in not appointing him an expert. The Third Circuit agreed with the District Court that “the purpose of Rule 706 is not to provide ‘litigation assistance’ to a party unable to retain an expert on its own.” The Third Circuit found no error by the District Court. McCracken asserted four more arguments on appeal, all not worth discussing here, which were all rejected by the Third Circuit.

This case is another example of a Plaintiff asking our Courts to buy into his or her theory of injury based on “because I said so.” The Third Circuit correctly found that Ford was entitled to summary judgement where plaintiff either could not find an expert to support his theory or he disregarded the court’s instructions by failing to find such an expert within their deadlines.

As a side note, this is McCracken’s thirteenth lawsuit asserting this general ambient radiation theory. He has sued numerous defendants including other automobile manufacturers, manufacturers of other types of vehicles that can travel in excess of 65 miles per hour, nuclear power plants, and energy companies. See McCracken v. R.E. Ginna Nuclear Power Plan, LLC, No. 08-cv-6217L, 2010 WL 1404115, at *4 (W.D.N.Y. Mar. 31, 2010).

Bounce Houses — Possible Toxic Entertainment for Children

What you see captured above is Main Street Friday in our own downtown Greenville, South Carolina. You will notice what some people call a “Bounce House” or “Bouncy Castle” featured in the photo. While all Greenville parents are happy to have a form of entertainment for their children as they enjoy the show, what they do not know is that they may be allowing their children to jump in a toxic structure.

Last week, The New York Times reported that California Attorney General Jerry Brown filed a lawsuit against entities that manufacture, distribute, or supply bounce houses used at events such as Main Street Friday or children’s birthday parties. He claims that the houses contain more than the allowable limit of lead and pose health risks to children. The Center for Environmental Health began an investigation into the vinyl used in the construction of bounce houses — the component that gives them the bounce. The results of their investigation revealed lead levels in the vinyl varying from 5,000 parts per million to 29,000 parts per million. The federal limit for lead levels is 90 to 300 parts per million, significantly lower than the vinyl tested in these houses.

Attorney General Brown reported that his intention for this lawsuit is to cause manufacturers to stop using lead-containing vinyl and/or ensure that all bounce houses have adequate warnings regarding possible lead exposure. While that actual health effects on children by jumping in a bounce house for several hours is unknown, Dr. Megan Schwarzman, a family physician at Berkeley Center for Green Chemistry, told the Times that “there was no safe level of lead exposure for children.” It will be interesting to see how this litigation progresses and whether similar lawsuits will arise around the country. While parents will be glad to be warned about the possible toxicity of bounce houses, I am sure that children will not be pleased!

Failure to Survey Medical Literature may be Negligence Per Se

One issue in a recent decision by the District Court of New Hampshire was whether a generic manufacturer’s failure to comply with Food an Drug Administration (“FDA”) regulations constitutes a per se violation of its duty of care under New Hampshire law. Bartlett v. Mutual Pharm. Co., No. 08-CV-358-JL, 2010 WL 2765358 (D.N.H. Jul. 12, 2010). Judge Joseph N. Laplante answered in the negative, holding that the jury could consider the violation as evidence of a breach but it was not a per se breach of duty.

In Bartlett, Karen Bartlett sought medical treatment for right shoulder pain. Her physician prescribed a non-steroidal anti-inflammatory (“NSAID”) drug called Clinoril. Bartlett’s pharmacist filled per prescription with Sulindac, the generic version of Clinoril, manufactured by Mutual Pharmaceutical Company (“Mutual”). Two weeks after taking Sulindac, Bartlett was diagnosed with Stevens-Johnson Syndrome (“SJS”) progressing to toxic epidemal necrolysis (“TEN”), a serious and potentially fatal condition characterized by necrosis of the skin and mucous membranes.

As a result, Bartlett filed suit against Mutual asserting state law claims for strict products liability – failure to warn, strict products liability – defective design, fraud, and negligence. During discovery, it was found that the year prior to Bartlett’s physician prescribing Clinoril to her, an international medical journal found a link between NSAIDs and the conditions that Bartlett suffered from. It found 89 reported cases of SJS/TEN over a 17 year period in patients taking Clinoril, more than any other NSAID on the market. Also during discovery, Mutual admitted not being aware of the study and not monitoring medical literature for information on Sulindac’s safety risks. According to Mutual, the manufacturer of the brand named drug was responsible for monitoring safety risks.

On cross-motions for summary judgement, Bartlett argued that she was entitled to summary judgement on her negligence claim based on Mutual’s failure to survey medical literature for adverse events associated with Sulindac. Bartlett based this argument on the FDA requirement that generic manufacturers “develop written procedures for the surveillance . . . of post-marketing adverse drug experiences to the FDA.” 21 C.F.R. Section 314.80(b).

The Court interpreted this regulation to require generic manufacturers to develop procedures for surveying medical literature for information and studies on safety risks. Therefore, the question became whether Mutual’s admitted violation of this safety regulation versus violation of a statute could be a per se violation of its duty of care. The Court found that courts were split over whether plaintiffs could seek to enforce a FDA violation through a negligence per se action even thought the FDCA does not provide for a private right of action. Judge Laplante found no clear answer in New Hampshire but held that the New Hampshire Supreme Court would likely not treat the violation as negligence per se. Therefore, the court denied Bartlett’s motion for summary judgment and ruled that the jury could consider the violation as evidence of breach.

Drug manufacturers, generic and named-brand, must be aware of these FDA regulations governing surveillance of medical literature. Compliance with these regulations will be especially relevant in states that consider violations as negligence per se and not merely evidence of breach for the jury to consider.

Will you please assume my liability?

Several weeks ago, the defendant in Altman v. Motion Water Sports, Inc., No. 3:07-cv-01383, 2010 WL 2747306 (D. Conn. July 12, 2010), asked the District of Connecticut to grant its motion for summary judgment finding that it, as a successor corporation, is not liable to plaintiff for his injuries from a defective product that it neither manufactured nor sold to plaintiff. The Court denied defendant’s motion, providing some insight into the law of Connecticut on successor liability.

Plaintiff, Russell Altman (“Altman”), purchased water skis from Earth and Winter Sports, Inc. (“EWS”) some time prior to March 28, 2003. On this date, EWS sold all of its assets to Motion Ocean Sports, Inc. (“MOS”). The purchase agreement between EWS and MOS expressly provided that MOS did not assume any liabilities of EOS. Further, there was no continuity of stock, stockholders, or directors. On the other hand, after the MOS purchased EWS’s assets, MOS continued to manufacture the same products, under the same names; took over the EWS factory; and hired approximately 50 of EWS’s former employees.

After the take-over, on July 21, 2004, Altman fell while water skiing and one of the skis failed to release from his foot. Altman alleged permanent physical injuries arguing that the ski was defective in several respects. Thereafter, Altman filed suit against MOS to recover for his injuries. In response, MOS moved for summary judgment on the ground that “under a general common law rule relating to corporations, a purchaser of the assets of a corporate business is not liable for the debts and liabilities of the previous owner of those assets.” Altman’s arguments in opposition to MOS’s motion included an argument that certain exceptions to the common law rule against asset-purchaser liability applied in this situation. See this opinion for all the other grounds Altman asserted in opposition of MOS’s motion.

The general rule is that “a corporation which purchases all the assets of another company does not become liable for the debts and liabilities of its predecessor unless (1) the purchase agreement expressly or impliedly so provides; (2) there was a merger or consolidation of the two firms; (3) the purchaser is a ‘mere continuation’ of the seller; or (4) the transaction was entered into fraudulently for the purpose of escaping liability.” Ricciardello v. J.W. Gant & Co., 717 F. Supp. 56 (D. Conn. 1989). Altman relied upon the third exception and argued that MOS was a mere continuation of EWS.

Within the “mere continuation” exception, the Court identified several different theories. The first is the so-called common law exception. Under this theory, the Court found that MOS was entitled to summary judgment because there was no transfer of corporate stock between the two companies and there was a total lack of continuity of shareholders and directors. Next, the Court stated that the continuity-of-enterprise theory applies where “the successor maintains the same business, with the same employees doing the same jobs, under the same supervisors, working conditions, and production processes, and produces the same products for the same customers.” The Court found that MOS did many of these things and that Altman was entitled to full discovery on this theory.

The final theory was the “product line” exception to the rule against successor liability. The Court noted that unlike the other two theories which were widely accepted in Connecticut, no Connecticut appellate court had considered the product-line theory. After considering the decisions of Superior Courts that have considered this theory, the Altman Court stated that since this theory was more consistent with the consumer-protection goals of the Connecticut Products Liability Act, he was entitled to invoke this exception and engage in full discovery on its applicability.

This case shows that there are not merely four exceptions to the rule against successor liability but theories within those exceptions that are being continually argued. If a corporation, such as MOS, takes over the assets of another corporation, it should be aware of these exceptions and ensure that their practices would not allow a plaintiff to successfully argue successor liability.

Another Victory for the Defense when Suit was Filed Against "Alternative" Defendants

We here at Abnormal Use recently became aware of another successful motion for summary judgement for the defense in a products liability case where the Plaintiffs pled defendants “in the alternative.” See our prior post Filing Suit Against “Alternative” Product Manufacturers is Not Enough on Summary Judgment. This decision was from the state court in Crawford County, Kansas and involved three separate actions involving the same facts. Cabrello v. All Star Fireworks, Inc., et al., No. 2007-CV-164; Robinson v. All Star Fireworks, Inc., No. 2007-CV-165; and Roberts v. All Star Fireworks, Inc., et. al., No. 2007-CV-159.

On August 18, 2005, six individuals at Piedmont Display Fireworks and Fireworks Spectacular were tasked with loading a trailer full of boxes of pre-squibbed aerial fireworks shells. These shells were pre-squibbed with electric matches affixed to their fuses. As the boxes were being loaded, an explosion occurred and three of the six workers were killed. The Kansas Fire Marshal’s office concluded that the explosion was caused as a result of an ignition source inside the last box loaded into the trailer. Electric matches were identified as the source that ignited the fireworks shells. Plaintiffs, however, identified five different defendants that could have supplied the electric matches associated with the explosion.

Plaintiffs filed separate actions against these defendants for negligence, strict liability – product defect, and strict liability – failure to warn. Three defendants filed a motion for summary judgment arguing that Plaintiffs could not prove causation. Plaintiffs actually agreed that they could not prove which defendants’ product was involved but relied upon the theory of alternative liability in Section 433B of the Restatement (Second) of Torts that provides the following:

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.

This Kansas court found no cases that indicated that Kansas had adopted this rule and found that even if a Kansas court had adopted this rule, Plaintiffs could not meet the elements required by the theory. To satisfy the elements of the theory, a plaintiff must still prove that the defendants were negligent before any liability can attach. In this case, there was no evidence establishing what products were in the box that initiated the disaster. Therefore, Plaintiffs could not prove which defendant was negligent, and the court granted summary judgment in favor of the defendants.

This opinion noted that 11 states had adopted the Restatement’s alternative liability theory. As in this case, even if a state has adopted the theory of alternative liability, plaintiff still might not survive a motion for summary judgment if he cannot identify what product caused the harm.

Filing Suit Against "Alternative" Product Manfucturers is Not Enough on Summary Judgment

Our post last Monday, Twombly and Iqbal Satisfied Even Where Plaintiff Cannot Identify Specific Manufacturer of Alleged Defective Product, highlighted a case which found a plaintiff could get past the motion to dismiss stage of litigation by naming “alternate” defendants as the manufacturers of the alleged defective product at issue. We stated that this type of pleading would often be used in the medication context and to watch for cases that determine how far a plaintiff can go naming “alternate” defendants. This question was answered by at least one court on June 21, 2010 in Kahle v. APP Pharms., LLC, No. 5:09-CV-78, 2010 WL 2521420 (N.D. W. Va. Jun. 21, 2010).

In Kahle, the decedent suffered from a intracerebral hemorrhage and was administered a “single low-dose heparin ‘lock flush’ that was allegedly used to ‘flush’ his intravenous line.” After the administration of this dose of heparin, the decedent suffered from heparin-induced thrombocytopenia, gangrene, and deep vein thrombosis. Kahle asserted that the heparin caused these complications,which led to the decedent’s death.

Kahle filed claims for strict liability, negligence, breach of warranty, negligent misrepresentation, fraud by concealment, and wrongful death against a number of defendants that manufactured heparin. During discovery, the hospital that administered the heparin produced documents showing that they purchased heparin products from two defendants, Hospira and APP Pharmaceuticals. However, the administrator of the hospital testified that he could not determine if it was Hospira’s or APP Pharmaceuticals’ product that was administered to the decedent.

Therefore, both Hospira and APP Pharmaceuticals filed motions for summary judgment on the grounds that Kahle failed to establish causation because she failed to prove whose product was administered to the decedent. In response, Kahle argued that “evidence that two manufacturer’s products were used in an area is enough to defeat a defendant’s summary judgment motion.” The Court disagreed finding the evidence Kahle had that established two manufacturers provided heparin products to the hospital “suggests a mere possibility that the decedent may have been exposed to [a certain defendant's] product.” This mere possibility was not enough. Therefore, the Court granted the defendants’ motions for summary judgment ruling Kahle failed to establish which defendant’s “product proximately caused the decedent’s injuries.”

This case instructs that while a plaintiff may be able to survive a defendant’s motion to dismiss when he or she files suit against “alternative” product manufacturers, courts may not be so lenient after discovery is complete and the plaintiff is still not able to establish which defendant manufactured the product that allegedly caused the plaintiff’s injuries.

Twombly and Iqbal Satisfied Even Where Plaintiff Cannot Identify Specific Manufacturer of Alleged Defective Product

In a recent action in front of the U.S. District Court for the District of Rhode Island, defendants in a product liability action argued that the plaintiff failed to satisfy the pleading requirements of Twombly [PDF] and Iqbal [PDF] because she failed to identify the manufacturer of the product she alleged to have caused her injuries. District Judge William E. Smith, disagreed with defendants, finding plaintiff had “made out facially plausible claims against each Defendant, alternatively.” Koch v. I-Flow Corp. et al., C.A. No. 09-441 S., 2010 WL 2265670 (D.R.I. Jun. 7, 2010) [PDF].

Plaintiff Shereen Koch (“Koch”), underwent three arthroscopic shoulder surgeries in 2005 and 2006, which included the “implantation of a pump designed to bathe Plaintiff’s shoulder joint with a local anesthetic after surgery.” Koch alleged that the treatment had not been approved by the federal Food and Drug Administration and resulted in permanent injuries to her shoulder cartilage. Plaintiff filed suit against the manufacturer of the pump as well as the manufacturers of bupivacaine, the anesthetic administered through the pump. She asserted claims against these defendants for I) negligence and negligence per se, II) strict products liability, III) breach of express warranty, IV) breach of implied warranties, V) fraudulent misrepresentation, VI) fraudulent concealment, VII) negligent misrepresentation, and VIII) fraud and deceit.
Bupivacaine is manufactured and marketed under different trade names and prior to filing her complaint, Koch was not able to identify which brand of bupivacaine she received in her pump. As a result, she filed claims, in the alternative, against both manufacturers of bupivacaine. In response, these bupivacaine manufacturer defendants filed a motion to dismiss plaintiff’s claims, Counts I – IV, on the ground that she cannot meet the standard for facial plausibility established by the United States Supreme Court because she could not identify the specific brand that harmed her.
The Court denied this motion to dismiss stating that while Koch must ultimately identify which defendant manufactured the bupivacaine administered to her, she made out plausible claims against each defendant, which was sufficient at this stage of the litigation. On Plaintiff’s fraud and misrepresentation claims, Counts V – VIII, the Court granted defendants’ motion to dismiss based upon Koch’s failure to satisfy Rule 9 by failing to set forth specific and particular facts concerning defendants’ alleged misrepresentations.
This decision instructs that manufacturers of products subject to a products liability action may be required to litigate an action beyond a motion to dismiss even where a plaintiff cannot specifically identify the brand of the product that caused the alleged harm. While this will most likely arise in the medication context, all manufacturers should be aware of this possibility.