In a fight over an allegedly defective vein filter manufactured by C.R. Bard Inc., a Third Circuit panel has agreed to give the Pennsylvania Supreme Court first dibs on deciding whether state law bars negligent design and strict liability claims related to medical devices.

The panel said that it was asking the justices to take a crack at the case based on uncertainty over how to apply decisions over allegedly unsafe drugs, and over product liability claims in general, to cases involving medical devices like Bard’s clot-catching filter.

The case stems from claims filed by Melissa Ebert as part of a MDL after a portion of a Bard filter she was implanted with in 2008 broke off and implanted itself in the wall of her inferior vena cava. Ebert was ultimately forced to undergo surgery in October 2011 to have the fragment taken out after it migrated into a branch of her pulmonary artery.

A trial judge ultimately threw out Ebert’s case last May, however, based on the Pennsylvania Supreme Court’s 2014 holding in Lance v. Wyeth that pharmaceutical companies can be found liable for design defects in instances where a drug is “too harmful to be used by anyone.”

In Ebert’s case, the trial judge found that the holding in Wyeth was as applicable to medical devices as it was to pharmaceuticals, and that Ebert hadn’t met her evidentiary burden of showing the G2 was too dangerous to be used at all.

In reviewing the case on appeal, however, the Third Circuit said it wasn’t clear whether the Lance decision was meant to apply only to medical devices, or whether it left the door open for plaintiffs like Ebert to show that alternative safer designs were available in order to prove their cases. The trial judge also rejected strict liability claims against Bard based on the state Supreme Court’s adoption of a provision of the Restatement (Second) of Torts as part of its 1996 decision in Hahn v. Richter barring such causes of action against manufacturers of prescription drugs.

Looking at the issue of strict liability, the Third Circuit said that the Hahn decision had to be read through the state Supreme Court’s 2014 finding in Tincher v. Omega Flex , in which the justices acknowledged a “presumption that strict liability may be available with respect to any product.”

Given the uncertainty surrounding both questions, the Third Circuit said that the justices should be left to decide whether either of Ebert’s claims could move ahead.

Law360:  https://www.law360.com/delaware/articles/1398224/3rd-circ-asks-pa-justices-to-take-up-device-liability-row

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