Health Law Daily  Negligence, products liability, breach of implied warranty claims against hip part manufacturer proceed
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Friday, June 14, 2019

 Negligence, products liability, breach of implied warranty claims against hip part manufacturer proceed

By Laura Lefkow, J.D.

A hip arthroplasty patient brought claims against the hospital and the manufacturer after the implanted device failed.

In concluding that a patient stated a claim for strict products liability and breach of implied warranty, a district court allowed a products liability lawsuit to go forward against the manufacturer of a hip implant, Wright Medical Technology Inc (Wright). The claims for breach of express warranty and negligent misrepresentation failed and were dismissed. The court dismissed all claims against the hospital with prejudice, because Missouri law allows only negligence actions against healthcare providers, and the negligence claim was not well pleaded (Gillan v. Wright Medical Technology Inc., June 12, 2019, Perry, C.).

Surgery and device failure. Two years after a patient’s hip replacement surgery surgery, the device implanted, the Profemur® Plus CoCR Modular Neck PHAC-1254, was recalled. A year later, his device fractured, causing a second hip replacement surgery. The patient brought claims for negligence, strict products liability, breach of warranty (express and implied), and negligent misrepresentation against the hospital and the device manufacturer.

Negligence. The manufacturer did not seek to dismiss the negligence claim, so the court allowed that to proceed. However, under Missouri law, the only action a plaintiff may bring against a health care provider is one based in negligence, and then only after providing an affidavit from a health care provider stating that the hospital failed to use reasonably prudent care that caused his injuries. The court found the patient did not state a claim against the hospital, however, because he failed to include that affidavit and did not allege that the hospital breached any duty of care. Accordingly, all claims against the hospital were dismissed.

Strict products liability. The manufacturer did not move to dismiss the strict liability claim of defective design or failure to warn, so that claim stood. The court denied the manufacturer’s motion to dismiss the manufacturing defect products liability claim, because it was sufficiently pleaded. The patient alleged the device differed from the manufacturer’s intended condition because it failed and that was sufficient at this stage of litigation.

Breach of warranty. The manufacturer did not seek to dismiss the breach of implied warranty claim, so the court refrained from ruling on it. The breach of express warranty claims failed because the patient failed to provide Missouri’s required pre-suit notice to the seller and failed to demonstrate that he or his doctor relied on alleged misrepresentations in purchasing the defective part. He alluded to express warranties made in the manufacturer’s advertisements, but did not demonstrate that the advertisements constituted a material factor inducing him to purchase the defective hip implant. Therefore, the breach of express warranty claim was dismissed.

Negligent misrepresentation. Under Missouri law, a claim for negligent misrepresentation must show that due to a failure to exercise reasonable care, a defendant made false statements that a plaintiff justifiably relied upon to his detriment. The court found the claim failed because the patient’s claim was devoid of any actual, material statements that were made to him or his doctor on which they justifiably relied. The marketing materials he referenced did not suffice because they were general assertions that could have been made to any person.

Holding. The court granted the manufacturer’s motion to dismiss as to the breach of express warranty claim in Count III, and negligent misrepresentation in Count IV. The court granted the hospital’s motion to dismiss all counts with prejudice. The patient’s claim for prejudgment interest was stricken. The remaining claims against the manufacturer were negligence, products liability based on manufacturing defect, design defect, and failure to warn, and breach of implied warranty.

This case is No. 4:18-CV-02012-CDP.

Attorneys: George E. McLaughlin (Warshauer-McLaughlin Law Group PC) for Leonard L. Gillan. Dana J. Ash (Duane Morris, LLP) for Wright Medical Technology, Inc.

Companies: Wright Medical Technology, Inc.

MainStory: TopStory CaseDecisions MDeviceNews PLDeviceNews SafetyNews MissouriNews

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