A belated Happy New Year to you, and we’ll say it softly just in case your head still hurts.  That is not an issue for us, as we greeted 2015 in Kennett Square, watching a giant lit mushroom drop from a crane.  A majestically descending fungus is even better than it sounds.  The drive there and back was pretty long, so we were sober as a judge.  (Sorry to say, we have had a couple of occasions in our career that prompted us to doubt the veracity of that phrase.)  Happy birthday to Dax Shepard, who appeared in that criminally underrated film, Idiocracy.  If you have not already seenIdiocracy, rectify that situation immediately.  You’ll be glad you did … especially after reading today’s post. 

January 2 is a date we associate with depression and doltishness.  The holidays are really and truly over – unless, like the Russophile Drug and Device Law Son, you’ve made the smart move to embrace the Eastern Orthodox tradition.  But January 2 is still a date that will live in infamy, if only because on this date in 1974 President Nixon signed the bill capping the speed limit at 55.  We make no apologies for siding with Sammy Hagar in screeching that we “can’t drive 55.”

All of which is to say, here’s a case that makes us think that The Law can be depressing and dumb.   In Beyerle, Jr. v. Wright Medical Technology, Inc., 2014 U.S. Dist. LEXIS 176653 (D.N.J. December 23, 2014), the plaintiff alleged that he had been injured by an orthopedic hip implant that had “inexplicably fractured.”  The plaintiff cited the New Jersey Consumer Fraud Act (CFA) in alleging that the defendant’s advertisements about product safety were lies. 

The defendant argued that the plaintiff’s CFA claim was preempted by the New Jersey Products Liability Act (PLA).  As the New Jersey Supreme Court made clear in Sinclair v. Merck & Co., Inc., 195 N.J. 51 (2008), the PLA is the “sole source of remedy in a products liability action.”  If the PLA applied, the plaintiff would have some hard sledding.  So the plaintiff got out from under the PLA’s requirements by arguing that his CFA claim fit within an exception to the PLA, which excludes claims for damage to the product itself.  And, indeed,  while the PLA is generally the exclusive remedy for claims based on harm caused by a product, there is an exception for damage caused to the product itself.  Before the hip implant injured the plaintiff, the hip implant broke.  The plaintiff complained that he “expended a substantial sum of money he otherwise would not have expended to purchase a replacement for the product and undergo surgery to implant the replacement product… [and] [s]uch expenditure is an ascertainable loss of money….”   

You see, the plaintiff just wanted his money back for the broken hip implant.  Sure.  

Clever, right?  But isn’t that maneuver also -- to employ a word that is entirely overused in our profession -- disingenuous?  Does the plaintiff take us all for idiots?  We remember chatting with an Assistant DA buddy who was prosecuting an aggravated assault case.  The defendant had used a crowbar to alter a fellow’s views on prompt repayment of debts, as well as to alter his jawline.  Now, with the benefit of Beyerle’s teachable moment, we think we should have advised the prosecutor to add a count that addressed the unnecessary denting of the crowbar.  

But we digress.  Back to Beyerle.  The court bought the plaintiff’s argument:  “At this stage in the litigation, it appears that Plaintiff’s CFA claim seeks economic damages resulting from harm to the product itself, and, as such, is not subsumed by the PLA.”  Maybe the court thought it premature and rude to call bs on the plaintiff.  We hope common sense and skepticism reside in the court’s caution that if discovery reveals that the “heart” (whatever that is) of the plaintiff’s case is the harm caused by the product, rather than harm caused to the product itself, the defendants may move for summary judgment on the CFA claim. The court understood that the harm to the product necessarily causes the harm by the product.  But this bit of scimitar-sharp logic did not put a halt to the plaintiff’s case.  The defendant will just have to content itself with the cold comfort that the court “expects, consistent with obligations under Federal Rule of Civil Procedure 11, that Plaintiff will only continue to pursue claims having a good faith basis and grounded in evidentiary support.”

To quote the ending of The Sun Also Rises, “Isn’t it pretty to think so?”