Health Law Daily Negligent misrepresentation claim against maker of artificial hip failures dismissed
Friday, February 14, 2020

Negligent misrepresentation claim against maker of artificial hip failures dismissed

By Deborah Hammonds, J.D.

Company granted dismissal of negligent misrepresentation claim filed by patient after artificial hip failures.

A claim for negligent misrepresentations requires facts alleging that the plaintiff heard and was influenced by the company’s alleged misrepresentations. Thus, a patient who filed suit after her artificial hip failed several times was unable to proceed with her claim of negligent misrepresentation against the manufacturer because she failed to provide facts that she heard the company’s alleged misrepresentations (Casey v. Wright Medical Technology, February 13, 2020, Wake, N.).

The patient underwent a total hip arthroplasty (more commonly known as hip replacement surgery) for her right hip and was implanted with a variety of artificial hip devices designed, manufactured, distributed, sold, and marketed by a medical company. A year later, the patient began having problems with her hip and subsequently underwent three additional surgeries for artificial hip replacement failure. After becoming aware of some problems with the hip devices, the company changed the design of a part but did not recall the original part or inform/warn doctors or patients who used the previous version. Eventually, the patient filed suit alleging four causes of action against the company: (1) strict product liability—design defect; (2) strict product liability—failure to issue post-sale warnings; (3) negligence; and (4) negligent misrepresentation. The company sought dismissal of the negligent misrepresentation claim and prayer for punitive damages.

The court concluded the patient’s negligent misrepresentation claim failed because there were no facts showing she or her physician actually saw or read the marketing materials at issue nor were there any facts to the effect she heard of the company’s alleged misrepresentations. The patient also failed to allege which false representations she or her physician relied upon and which representations, if any, affected the decision to use the company’s device. The mere allegation that she, her physician, and the "consuming public" relied on the information provided by the company and its marketing materials was insufficient to withstand a motion to dismiss.

Further, while the patient alleged the company’s misrepresentations were made in 2008, 2009 and 2011, she failed to identify who at the company made the misrepresentations. Her complaint points to company marketing materials but it was unclear who published and distributed the materials, when and how frequently the material were published, and to whom the materials were sent. Nor did the patient allege when she and her physician were exposed to the company’s alleged misrepresentations. As such, her negligent misrepresentation claim was dismissed for failure to state a claim and plead with particularity. However, because the patient might be able to save her claim by providing more detailed factual allegations, leave to amend was granted.

The case is No. 2:19-cv-05360-NVW.

Attorneys: Timothy James Casey (Schmitt Schneck Casey Even & Williams PC) for Theresa I. Casey. Claire Martha Hillman (Shook Hardy & Bacon LLP) for Wright Medical Technology Inc.

Companies: Wright Medical Technology Inc.

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