You’ve probably heard James Carville’s description of Pennsylvania as Pittsburgh on one end, Philadelphia on the other, and Alabama in-between. Let’s put aside that last bit, which manages simultaneously to insult both Alabama and middle Pennsylvania, and focus on the rivalry between Pittsburgh and our fair city, Philly. Those two municipalities are separated by a lot more than 305 miles. Pittsburgh invented Big Steel, while we invented, you know, freedom. People in Pittsburgh eat huge sandwiches containing French fries, while we fill ours with meat and cheese-whiz, leaving the fries on the side. Our sports fans are more devoted – think Invincible or Silver Linings Playbook. Lincoln Financial Field had its own Eagles jail. (Granted, Pittsburgh’s teams, unlike ours, actually win with some frequency. Congrats to the Penguins, we say through gritted teeth.) A short road trip from Philly gets one to NYC, the Shore, the Poconos, or DC. Not bad, right? If you drive for a couple of hours out of Pittsburgh, you can be in … West Virginia. (Oh no – time for more Mountaineer hate mail.) Our city’s name is on some great movies – e.g., Philadelphia, The Philadelphia Story. Philly was the setting for many essential flicks. There’s Witness, Dressed to Kill (that great early scene is in the Philly Art Museum, though you’re supposed to think it’s the Met), Trading Places, Twelve Monkeys, The Sixth Sense, etc. We could go on and on. (Go ahead, dare us.) Ever heard of Rocky? By contrast, when has cinematic greatness touched Pittsburgh? Wonder Boys? The Fish that Saved Pittsburgh? Groundhog Day? (And that last one is a stretch.) Two of the greatest American painters, Eakins and Cassatt, lived in the Philly area. We’ll take either one of them over Warhol. (Yes, yes – it has been pointed out to us that Cassatt was born in Pittsburgh. But she high-tailed it out of there at a young age. She grew up in a nice area near Philly. At least we think it’s nice. We live in that area now. Our street is named Cassatt – though named after her father, not her.) Our music is better. We’ll take Joan Jett over Christina Aguilera, Teddy Pendergrass over Stephen Foster, Gamble/Huff over Wiz Khalifa, and Pink over Pink Panther (i.e., Henry Mancini, composer of the theme song). In a recent poll, the Philly accent was listed as one of America’s ugliest. But guess who ‘won’ as ugliest of all? Pittsburgh, the heewme of the Yinzers.
But if we had to defend a drug or device client, we’d probably rather be in Pittsburgh. We do not remember anybody ever calling Pittsburgh a judicial heck-hole. Jurors there seem to have a Midwestern-sort of sanity, unlike our jurors, who flip million dollar verdicts around like they were nickels. Moreover, the judges out there seem to get it right. They follow the rules, rather than bend them in an effort to accommodate sympathetic plaintiffs or friendly plaintiff lawyers. Have you ever heard of Pittsburgh litigation tourism? Neither have we. A recent example of Western Pennsylvanian common sense arrived in the form of the decision in Carson v. Atrium Medical Corp., 2016 U.S. Dist. LEXIS 74743 (W.D. Pa June 8, 2016). In Carson, the plaintiff had undergone a hernia repair involving a polypropylene mesh implant. The plaintiff suffered from complications and additional surgical procedures. Her complaint included the usual panoply of claims – strict liability, negligence, and breach of warranties. Pennsylvania law governed, and that turned out to be a bit of a problem for the plaintiff once the defendants filed a motion to dismiss.
As an initial matter, the court held that the plaintiff’s strict liability claim was barred by Pennsylvania law – specifically, the Torts Restatement Comment k on “unavoidably unsafe products.” To be sure, while the Pennsylvania Supreme Court has invoked Comment k to shut down strict liability claims against prescription drugs, it has not yet decided whether Comment k applies to medical devices. But state lower courts and various federal courts have reasoned that the same rationale for Comment k makes sense for devices. The judge in Carson agreed. The plaintiff argued that if Comment k were to be applied to devices, it should be limited to products that were “accompanied by proper directions and warning.” Under that reasoning, a failure to warn claim would get a plaintiff out from under Comment k. But the Pennsylvania Supreme Court has rejected that exception for prescription drugs, so there was no reason to gin it up for devices. Maybe some other states have recognized or made up caveats to Comment k’s exclusion of strict liability claims, but the Carson court correctly felt bound by Pennsylvania law, which does not recognize such caveats. Goodbye, strict liability.
The plaintiff conceded that Pennsylvania law prohibited her negligent marketing, negligent testing, and fraud claims. So why were they in the complaint?
The plaintiff also alleged a claim for manufacturing defect. Or perhaps “alleged” is too strong a word. Maybe “wished for”? The plaintiff did not include any actual facts to show anything wrong with the defendant’s manufacturing process. Instead, she simply offered general statements that the defendants “were negligent in the manufacturing process.” That sort of conclusory statement falls short of the federal pleading standard established in Iqbal and Twombly. Indeed, it falls short of telling us much of anything at all. Deviation from specs? Something else? As we’d say in Philly, whaddya taawkin’ bout? Re-dic-liss.
The pesky warranty claims, which so often seem like perfunctory afterthoughts, as if omitting them would get you in dutch with the plaintiff lawyers’ union, fared no better. For any defendant in Pennsy staring at a warranty claim, think of the Makripodis case, which held that the “very nature of prescription drugs themselves precludes the imposition of a warranty of fitness for ‘ordinary purposes, as each individual for whom they are prescribed is a unique organism.” Makripodis by Makripodis v. Merrell-Dow Pharm., Inc., 361 Pa. Super. 589 (Pa. Super. Ct. 1987). Federal courts have embraced Makripodis, and have extended its reasoning to preclude claims for other warranties (e.g., merchantability) as well. Further, think back to Comment k. If medical devices are unavoidably unsafe products, there can be no claim for breach of implied warranty.
It was not an across-the-board win for the defense. The WD Pa. court denied the motion to dismiss the misrepresentation claims. The plaintiff alleged that the defendants marketed the product as “safe, fit and effective for use in hernia repair.” She also alleged that the defendants misrepresented and concealed from the plaintiff’s physicians the serious risks, damages and defects enumerated in this complaint. At least for now, those causes of action are viable, though whether they will survive discovery remains to be seen.