In searching for cases for this blog, we sometimes feel like its Groundhog Day.  Another preemption win in a PMA medical device case.  Another food labeling decision from California.  Another failure to plead fraud with particularity dismissal.  Another “Okay, campers, rise and shine, and don't forget your booties 'cause it's cooooold out there today.”  Well, that last one really only applies to Phil Connors, but you get the idea.   

Faced with routine rulings, it can be difficult to be creative, to find the new hook or twist.  So, sometimes the answer is simply to not – be creative that is.  Sometimes, a decision is just what it looks like it is on its face.  Another good ruling in an already good body of law.  But that doesn’t mean it should be disregarded either.  We just need to pluck out the good sound bites and add them to top of the pile. 

For instance, if faced with a claim for negligent failure to test in Pennsylvania, you can now add Houtz v. Encore Medical Corp., 2014 U.S. Dist. LEXIS 170481 (M.D. Pa. Dec. 10, 2014) to your motion to dismiss on the ground that “Pennsylvania courts have explicitly stated that negligent failure to test is not a viable cause of action.”  Id. at *7. 

You can also toss in a cite to Houtz to defeat a negligent marketing claim, which is not recognized in Pennsylvania except for a claim of over-promotion.  Id. at *8-9.  But as the court points out, over-promotion is a very limited exception in which it is alleged that defendant’s promotion negated otherwise adequate warnings.  Id.  If plaintiff alleges, as she did in this case, that Defendants provided no warnings to her, then she has precluded “any prospect that this narrow exception to the prohibition on negligent marketing claims would apply.”  Id. at *9.

Or, if your plaintiff is trying to use dicta in Lance v. Wyeth, 85 A.3d 434 (Pa. 2014) to get around the learned intermediary doctrine, you can use this: 

However, ultimately the Supreme Court [in Lance] chose not to consider the wisdom of modifications or exceptions to the [learned intermediary] doctrine, because the case before it did not present the issue for consideration.

It is not the province of this Court to extend the law of Pennsylvania and dispose of a doctrine that is still the law of the state.  

Houtz, at *14.  The learned intermediary is still alive and well in Pennsylvania.  If you have a device case, Houtz goes on to explain that plaintiff’s urged interpretation of Lance is an even greater stretch.  Id.  Because plaintiff’s complaint contained no allegations about the adequacy of the warning provided to her surgeon (only to her), her failure to warn claim was dismissed with leave to amend. 

Houtz can also come in handy if your plaintiff’s design defect claim is a little thin.  At a minimum the court needs to be able to understand from the complaint “what theory of design defect” is being alleged.  And, if that theory is “based upon the availability of an alternative, safer design, [plaintiff] must plead in her complaint what that alternative, safer design might be.” Id. at *17.  Again, the court gave plaintiff leave to amend to fix this pleading flaw.

Finally, Houtz gives us a little reminder about the limited nature of the “malfunction theory.”  The malfunction theory of liability allows a plaintiff to prove a manufacturing defect with circumstantial evidence.  Id. at *19.  However, in order to proceed on this theory, plaintiff must prove that the product at issue “has been destroyed or is otherwise unavailable.”  Id. at *19, 20.  If the product is available, plaintiff is not entitled to an inference of a defect.  She’s going to have to prove it the old-fashion way – direct evidence and testing.

Thanks to Terry Henry at Blank Rome for passing along this decision full of nice, neat quotable tidbits on Pennsylvania law.