The Third Circuit just confirmed what we all knew had to be true in device litigation: pointing to the failure of another device in another patient or to a supposedly better label for a different device is not nearly enough to get to trial on design defect or failure to warn claims. That’s precisely what the Zimmer hip-implant plaintiff tried in Kline v. Zimmer Holdings, Inc., 2016 WL 5864886 (3d Cir. Oct. 7, 2016), and the Third Circuit rejected it.

To support his design defect claim, the plaintiff submitted an affidavit from his treating doctor discussing a different patient who also had a failure of a Zimmer hip implant. But the occurrence of two purported failures does not clear the way to trial. In fact, the court only had to scratch the surface of the affidavit to see its problems. The other patient’s product was a different Zimmer product. The circumstances of the other patient, the implant and its failure were different. There was no evidence as to what caused the other device’s failure. And the other patient’s implant failed after the device had already been implanted in plaintiff. These facts so solidly established the irrelevance of the affidavit that the Third Circuit held it inadmissible. The plaintiff also tried a host of design defect theories from his experts that were just that—theories—but with, as the Third Circuit held, no “record evidence showing any of these design choices were unreasonable.” It then upheld summary judgment against plaintiff’s design defect claims.

The Third Circuit was equally unimpressed with plaintiff’s failure-to-warn evidence. That evidence consisted of pointing to another product’s label, which included a contraindication for patients at a certain weight or BMI, something that the label for the Zimmer product did not have. But that was the extent of plaintiff’s evidence. He did not show that the other device was similar to the Zimmer device. He did not show that the other device’s contraindication was reasonable or why. And he did not show that the risk of fracture in the Zimmer device with patients at such a weight or BMI was high enough to warrant a contraindication. It seems that plaintiff thought that, like pointing to another patient who experienced a failure of a different device, pointing to a contraindication in a different device’s label would get him to trial. It did not. The Third Circuit upheld summary judgment against plaintiff on his failure to warn claim.

Not surprisingly, pointing to the mere existence of other products’ failures or labeling isn’t nearly enough to prove a plaintiff’s claims. We all knew that. To the extent we had any doubts, the Third Circuit just dispelled them.