Monday, November 14, 2011
Interesting analysis of whether a learned intermediary (i.e., the prescribing/treating physician) voids a claim for breach of implied warranty in a medical device products case from the good people at Drug and Device Blog:
In a relatively recent case, Currier v. Stryker Corp., 2011 WL 4898501 (E.D. Cal. Oct. 13, 2011), the court stated, with respect to a claim for implied warranty
Because this is a medical implant case, and the [complaint] alleges that the product was surgically inserted in a hospital, the Court cannot plausibly infer from the [complaint] that Plaintiff relied on anything other than his physician's skill and judgment in selecting the . . . product, nor that any purchase of the product was based on a warranty from the manufacturer to Plaintiff. The Court cannot plausibly infer that there is a relationship between the Defendants and Plaintiff that would allow Plaintiff to state a breach of warranty claim.
Id. at *4. The court seems to be saying that, in a prescription medical product liability case, there can’t be an implied warranty claim unless the plaintiff, as opposed to the prescribing physician, relied on the alleged warranty.
D&D does its usually thorough job of canvassing other states' law to see how widespread this approach may be. Worth a read.