At some point, early in the pelvic mesh litigation, some genius on the other side decided it would be a good idea to include a stand-alone claim for “defective product” in at least one of the plaintiffs’ standard complaints. “Defective product” was pleaded as some generic form of strict liability, separate and apart from the three accepted theories of manufacturing, design, and warning defect. We have no idea where this concept of “defective product” came from. It’s not adopted by the law of any state as far as we can tell.
But, since Rule 11 is one of the many Federal Rules of Civil Procedure that is ignored in multi-district product liability litigation, once it made it into a pelvic mesh master complaint, it was rotely pleaded by lazy plaintiffs’ attorneys from coast to coast. This bogus theory that cannot be killed (enough) now shows up occasionally in other mesh litigation, as well.
Usually, whenever a defendant has challenged the validity of such an indefensible “defective product” claim, the plaintiff ditches it voluntarily. But not all the time. So, for the good of the order here is a collection of cases dismissing “defective product” claims over opposition as without any legal basis.
The most thorough demolition of the imaginary cause of action for “defective product” occurred in Kuchenbecker v. Johnson & Johnson, 2019 WL 44160793 (S.D. Fla. Sept. 16, 2019). Contrary to the plaintiffs’ argument, a claim “based upon a defective product,” was not the same as a claim for “defective product:
[C]ase law makes clear that a plaintiff prevails on a defective product claim by showing the product is defective by virtue of a design defect, a manufacturing defect, or a defective warning.” In other words, a defect in design, manufacture, or warning is a species of a strict product liability claim. Moreover, Plaintiffs’ three sentence paragraph in support of [their defective product claim] does not cite any authority establishing that Florida courts recognize a strict liability “defective product” claim as a cause of action independent from strict liability defective design, manufacture, or warning claims. Therefore, the Court concludes that Plaintiffs’ “defective product” claim is not a standalone cause of action under Florida law.
Id. at *2. Moreover, even if there had been such a claim under Florida law, plaintiffs’ allegations were “duplicative” of their other claims for defective design and warnings. Id. “To promote judicial economy, a court should dismiss claims that are duplicative of other claims.” Id. (citation and quotation marks omitted).
[B]ecause the “defective product” claim stems from identical allegations in other counts, and will be decided under identical legal standards as those other counts, the Court also finds the “defective product” claim is duplicative of Plaintiffs’ defective design and defective warning claims.
Id. at *3.
Several cases have reached the same result under Kentucky law. Corder v. Ethicon, Inc., 473 F. Supp. 3d 749, 761 (E.D. Ky. 2020), recognized that “[d]efective design, defective manufacturing, and failure to warn are the theories marshaled to establish breach in products liability cases.” Id. at 761. A separate “defective product count was “redundant,” and “see[ing] no distinct theory, Corder dismissed it. Id. Likewise, while “a defective product is an essential element in any products liability tort suit . . ., it is not in and of itself a fully developed cause of action; liability is ultimately imposed under the rubric of defective design, defective manufacturing, and failure to warn.” Smith v. Ethicon, Inc., 2021 WL 4098408, at *5 (E.D. Ky. Sept. 2, 2021). Similarly, Garvin v. Ethicon, Inc., ___ F. Supp.3d ___, 2022 WL 2910024 (W.D. Ky. July 22, 2022), held:
[Defendant] contends that Kentucky law doesn’t recognize a general strict-liability claim for a defective product. Instead, . . . plaintiffs wishing to pursue strict-liability claims based on product defects must specify the source of the defect − which could be a manufacturing defect, a defective design, or a failure to warn. So [plaintiffs’] freestanding strict-liability claim fails.
Id. at *2 (citation omitted).
Pigulski v. Johnson & Johnson, Inc., 2019 WL 2582540 (D.N.H. June 24, 2019), held that New Hampshire recognized only the big three manufacturing, warning, and design bases for strict liability. Plaintiff’s “fourth” theory was redundant and thus dismissed:
[I]t is not clear what [plaintiff’s] theory for her fourth strict liability claim might be other than what is set forth in other claims. In Count IV, [plaintiff] alleges that defendants’ products “are inherently dangerous and defective, unfit and unsafe for their intended and reasonably foreseeable uses, and do not meet or perform to the expectations of patients and their health care providers”. . . . As such, [plaintiff’s] claim in Count IV alleges a product liability claim based on both a manufacturing defect and design defect. Those theories of liability, and nearly identical allegations, are set forth in support of [other product liability] claims. . . . [plaintiff] makes no argument to show that she is alleging a distinct cause of action in Count IV. . . . As a result, [plaintiff] does not allege a separate claim in Count IV and defendants’ motion to dismiss is granted as to that Count.
Id. at *6 (footnote omitted).
In Washington State, March v. Ethicon, Inc., came to the same conclusion:
It appears to the Court that [defendant] is correct that neither the WPLA [Washington Product Liability Act] nor Washington law recognize a cause of action for defective product. And Plaintiffs have not provided any law establishing that Washington recognizes an action under the WPLA for defective product. Plaintiffs’ argument that [defendant] may be held strictly liable if it failed to properly warn [plaintiff] through her implanting physician is a failure to warn claim, not a defective product claim.
2021 WL 719261, at *2 (W.D. Wash. Feb. 24, 2021) (citation omitted).
Under Georgia law, Collins v. Ethicon, Inc., 2017 WL 6375974 (S.D.W. Va. Dec. 13, 2017), rejected any “action for ‘defective product’ that is distinct from the actions for manufacturing defect, failure to warn, and design defect.” Id. at *3. “Georgia courts define three sub-categories of defective products,” and “Georgia does not recognize an additional distinct claim for ‘defective product.’” Id. A post-remand Georgia court agreed:
Defendants argue that there is no stand-alone claim under Georgia law for “defective product” and that [this count] should be dismissed as duplicative of Plaintiff’s design defect claim. . . . Plaintiff has not otherwise demonstrated that Georgia law recognizes an independent claim for “defective product.” The Court concludes that Plaintiff’s “defective product” claim arises from identical allegations in another count. Accordingly, the Court finds that Plaintiff’s “defective product” claim is duplicative of Plaintiff’s design defect claim and GRANTS Defendants’ motion to dismiss.
Jones v. Ethicon, Inc., 2020 WL 5836555, at *4-5 (M.D. Ga. Sept. 30, 2020).
For completeness, here are some other cases we have come across that have also granted contested motions to dismiss “defective product” claims, as not stating a cause of action – but without any extended discussion. Acosta v. Ethicon, Inc., 2021 WL 2548686, at *4 (C.D. Cal. April 16, 2021); Messina v. Ethicon, Inc., 2021 WL 1329072, at *4 (M.D. Fla. March 31, 2021); Carter v. Ethicon, Inc., 2021 WL 1226531, at *3 (D. Nev. March 31, 2021); Jones v. Ethicon, Inc., 2021 WL 1199028, at *7 (S.D. Ga. March 30, 2021); Curtin v. Ethicon, Inc., 2021 WL 825986, at *4 (D. Colo. March 4, 2021); Marrufo v. Ethicon, Inc., 2020 WL 7680562, at *3 (W.D. Tex. Nov. 20, 2020); Baca v. Johnson & Johnson, 2020 WL 6450294, at *4 (D. Ariz. Nov. 2, 2020); Wegmann v. Ethicon, Inc., 2020 WL 5814475, at *10 (E.D. Mo. Sept. 30, 2020); Orr v. Ethicon, Inc., 2020 WL 9073528, at *10-11 (E.D. Tenn. Sept. 11, 2020); Webb v. Ethicon, Inc., 2020 WL 5503646, at *3 (E.D. Tenn. Sept. 11, 2020); Dorgan v. Ethicon, Inc., 2020 WL 5372134, at *2 (W.D. Mo. Sept. 8, 2020); McFarland v. Ethicon, Inc., 2020 WL 4464401, at *3 (S.D. Ohio Aug. 4, 2020); Heide v. Ethicon, Inc., 2020 WL 1322835, at *6 (N.D. Ohio March 20, 2020); Famigletti v. Ethicon, Inc., 2019 WL 7370670, at *2 (N.D. Tex. Dec. 31, 2019); Cooper v. Ethicon, Inc., 2017 WL 2624547, at *2 (S.D.W. Va. June 16, 2017) (applying Arkansas law); Blackston v. Ethicon, Inc., 2017 WL 988109, at *2 (S.D.W. Va. March 14, 2017) (applying Maryland law); Forester v. Ethicon, Inc., 2017 WL 525853, at *2 (S.D.W. Va. Feb. 8, 2017) (applying Arkansas law); Dixon v. Ethicon, Inc., 2017 WL 1288592, at *2 (S.D.W. Va. Feb. 3, 2017) (applying Pennsylvania law); Wroble v. Ethicon, Inc., 2017 WL 470906, at *2 (S.D.W. Va. Feb. 3, 2017) (applying Illinois law); Waynick v. Ethicon, Inc., 2017 WL 402058, at *2 (S.D.W. Va. Jan. 30, 2017) (applying Illinois law); Herrera-Nevarez v. Ethicon, Inc., 2017 WL 384033, at *3 (S.D.W. Va. Jan. 26, 2017) (applying Illinois law); Mullins v. Ethicon, Inc., 2017 WL 240078, at *2 (S.D.W. Va. Jan. 19, 2017); Jones v. Ethicon, Inc., 2016 WL 7404711, at *3 (S.D.W. Va. Dec. 21, 2016) (applying Michigan law); Sacchetti v. Ethicon, Inc., 2016 WL 7320884, at *3 (S.D.W. Va. Dec. 15, 2016) (applying Maryland law).
It is indeed ironic that in an individual case, a plaintiff who pursues a claim with no factual or legal basis – such as “defective product” – typically would be subject to Rule 11 sanctions, but in the Through-the-Looking-Glass world of mass torts, plaintiffs can do the same thing hundreds of times over with no consequences at all, other than eventual dismissal.