Tuesday, June 23, 2009

Going After Anyone In The Neighborhood (Adelmann-Chester v. Kent)

Vitek manufactured and distributed Proplast dental implants, used to treat degeneration of the temporal mandibular joint in the jaw. The FDA recalled those implants in 1991. The whole world sued.

Vitek declared bankruptcy.

Dr. Charles Homsy was an officer, director, and shareholder of Vitek.

Homsy skipped the country.

DuPont manufactured a raw ingredient that Vitek used to manufacture the implants.

Courts held that DuPont was protected by the "bulk supplier doctrine," which is an absolute defense to failure-to-warn claims.

Who's a plaintiff to sue?

675 plaintiffs chose to join in a single lawsuit in Louisiana state court to sue, among other, Dr. John Kent, a dentist who was a professor at LSU School of Dentistry and who had served as a scientific advisor to Vitek as it developed the Proplast device.

That's the backstory of Adelmann-Chester v. John N. Kent, D.D.S., 2008-0770, 2009 La. App. LEXIS 1073 (La. App. 4 Cir. June 5, 2009), the case that we're thinking about today.

A bunch of plaintiffs settled their claims and other claims were dismissed as time-barred, leaving a mere 163 plaintiffs when Kent moved for summary judgment. The trial court granted that motion, and the court of appeals affirmed.

Kent had a fair number of dealings with Vitek. He helped to design the implant and obtained patents in that regard. He received a royalty payment when Vitek sold certain products. He acted as a consultant to Vitek and owned some of the corporation's stock. But Kent never participated in fabricating or selling the implants. Id. at *3.

On that record, claims against Kent couldn't survive. Negligence claims didn't work because Kent owed no duty to patients implanted (by other dentists) with the Proplast device. Id. at *20.

Strict product liability claims couldn't work because Kent was not a "manufacturer'"or "professional vendor" of the implants. Id. at *34. (Along the way, the Adelmann-Chester court cited Reeves v. AcroMed Corp., 103 F.3d 442 (5th Cir. 1997), for the proposition that the inventor of a medical device cannot be liable under a product liability theory as a manufacturer or supplier of the product. One of us worked mighty hard to achieve that result in Reeves way back when, so we're delighted to see that the precedent is making a lasting impact.)

People other than "manufacturers" or "vendors" can be liable for failure to warn only if they fail to pass on to product users an adequate warning that the manufacturer provided. Since plaintiffs offered no evidence of any warning provided with the Proplast device, Kent couldn't be liable for failing to pass that warning along. Id. at *36.

The court also noted that, although there may have been negligence in the production of the Proplast device, there was no evidence that Dr. Kent personally had been negligent in the particular activities that he performed. Id. at *33-*34.

Those holdings undercut each of plaintiffs' legal theories, so the appellate court chose not to address assorted other alleged errors identified by plaintifs on appeal.

We're pleased to see the Louisiana Court of Appeal hold the line in this case. When a primary defendant isn't around to pay claims, and a bunch of plaintiffs are claiming injury, it's easy for courts to ignore the law and look for anyone in the neighborhood to hold liable. (Think about the tertiary asbestos defendants, for example.)

But defendants have rights, too. A scientist (or dentist, or physician) can properly choose to perform specific roles for a medical device company -- helping to design a product and giving scientific advice -- and to invest in the company -- presumably because the scientist thought the company was selling a good product -- without agreeing to manufacture or sell the product. If the scientist breaches a duty in the role that he or she agreed to undertake, then the scientist can properly be held liable.

But the scientist shouldn't be held liable to the entire world, after the fact, simply out of a perceived need to hold someone -- anyone! -- liable to pay damages to allegedly injured plaintiffs. That result would upset the parties' appropriate expectations when they originally entered their arrangements, and would cause many scientists to refuse to work with medical device companies, which would surely work to society's collective detriment.

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