Those of us whose childhood had low tech play options and at least a touch of OCD recall playing with dominoes.  Not whatever the game is where the number of dots on a tile matters, which we understand exists from witnessing it in screen classics like “Boyz n the Hood.”  No, we mean the activity where you line up a series of dominoes in a sequence where tipping over the first one will cause a chain reaction where many or all fall over.  If you were really motivated or bored, then the arrangement of dominoes might have included the construction of elaborate stairs, towers, or catapults or tiles falling off of tables to start new chains.  There is probably some app for this now.  

The decision in Grabowski v. Smith & Nephew, Inc., No. 14-433, 2014 La. App. LEXIS 2367 (La. Ct. App. Oct. 1, 2014), reminds us of dominoes.  (We do try to have our non-legal introductions have something to do with our purported point.)  The case was really a detour from what looked like a medical malpractice action against a surgeon who performed a knee replacement with an insert that was too small for the tray he used. The details of the two part implant system are not terribly important here, but the sizing of the insert and tray should match up.  The surgeon blamed the sizing error on the sales rep present at the implant after learning about it from another rep at a revision surgery three months later.  Skipping over some procedural parts and a whole section of the decision about a motion to recuse the judge—arrangements of dominoes sometimes have dead ends on purpose—plaintiff sued the original rep, the distributor with whom he had a contract at the time of the implant surgery, and the manufacturer of the implant with whom he used to have a contract.  The defendants eventually moved for and were granted summary judgment.  The basic idea was the rep was not liable for negligence because the duty of providing medical care to the patient—including using the right size of any medical device—rested solely with the surgeon.  In addition, the distributor was not liable for acts or omissions of someone who was its independent contractor and the manufacturer was not liable for someone with whom it had no direct contractual relationship.  On appeal, all the tiles fell to bring the deep pockets back into the case.  (We cannot tell what happened in terms of litigation between the plaintiff and the surgeon.)

To impose any liability on the defendants in the absence of any allegation of failure to warn, mislabeling or product defect, first there had to be a duty owed by the rep to the plaintiff to “insure the proper implant was used in Mrs. Grabowki’s surgery.”  Id. at *18.  That sounds like part of practicing medicine to us and the evidence was that the surgeon “determined that Mrs. Grabowski required a size 5 implant . . . inserted the poly insert into the tray and tested it to verify that the dovetail mechanism of the implant held the tray and insert together in place [and] then completed the surgery.”  Id. at *3.  Regardless of what size insert the rep handed over to the nurse, it was the surgeon who did or did not perform the surgery correctly, including using the right devices.  Drawing largely on a distinguishable case where a physician’s answering service owed a duty to patients to promptly and accurately relay information from the patients to the physician, the appellate court found that the rep owed a duty “to provide the appropriate size poly insert for the size 5 implant that Dr. Collins determined Mrs. Grabowski required.”  Id. at *26.  That the duty was owed to the patient—with whom the rep never interacted—as opposed to the doctor or hospital staff—with whom the rep did have interaction—was glossed over.  The novel duty was rationalized largely on economic terms:

We do not see that imposition of this duty will result in an unmanageable flow of litigation . . . . [T]he nature of [the rep’s] activities, his experience, and his expected conduct in the OR made it clearly foreseeable that his failure to provide the proper size implant and corresponding poly insert would result in harm to the patient in whom it was being implanted.  Mrs. Grabowski was not at fault.  The economic impact is that all parties that contributed to Mrs. Grabowski’s harm share in the responsibility for her damages.  Surgeries, especially ones like Mrs. Grabowski’s, are becoming more and more technologically advance, requiring technological assistance from sales representatives who are specially educated and trained with respect to the medical devices they sell.  Accordingly, it is reasonable for these sales representatives to be responsible for their negligent acts.

Id. at **26-27.  Among other things, this rationale seems to ignore that the consequence of imposing potential liability for reps and entities that may be responsible for their acts or omissions is that it would deter the provision of this necessary technical assistance unless liability can be reallocated to the doctors and hospitals.  If we start with the assumption that “more technologically advance[d]” surgeries appeal to surgeons because they might improve the care provided to patients, then expansion of liability like this does not seem like a good idea, as we have said before.

From here, the analysis of whether there was a genuine issue of material fact as to whether the alleged breach of the new duty caused plaintiff’s injuries was brief.  The defendants went as far as introducing expert evidence that the implanting surgeon and hospital acted below the standard of care in connection with the implant.  Id. at *28.  Based on no evidence from plaintiff we see beyond that the rep did provide the implant after the surgeon specified the size, the court found a genuine issue of material fact. We understand that joint tortfeasor law varies and not everywhere has the concept of last clear chance, but there should be some evidence that what the rep did caused the injury when the surgeon is the one who determined that the implant he received was the size he wanted to use in the surgery he performed.

With potential liability for the rep established, the court turned to imposing liability on the distributor and manufacturer for the rep’s alleged breach of a novel duty.  To its credit, it rejected the argument that the basic reciprocal indemnity provisions in the contract between the rep and the distributor made plaintiff a third party beneficiary of the contract.  Id. at **29-32.  The handling of the argument that the rep acted with apparent authority for the manufacturer, with whom he had no direct relationship at the time of the implant surgery, is more problematic.  The court set out several “facts” that collectively established a genuine issue as to the existence of apparent authority.  While having a business card saying he was the representative of the manufacturer and the manufacturer’s name on a badge the hospital gave him to allow him to enter the operating room may be relevant facts, others were not “facts.”  The implanting surgeon offered that he “believed” the rep represented the manufacturer and “opined” that the manufacturer should be liable for failing to train the rep who no longer had any direct relationship with it.  That all sounds more like a justification for why the manufacturer should be liable than facts supporting apparent authority, but it was enough for the appellate court.  Id. at **35-37.

Similarly, the last piece to fall was that the distributor’s contract with the rep created a “master-servant” relationship even though it purported to create an independent contractor relationship.  The basic question is whether the contract gave the distributor the right to supervise and control how the rep performed his contractual responsibilities.  The contractual provisions that were sufficient to deem the rep an employee of the distributor included “the payment of commissions for his sales, the number of causes for termination [of the rep], the lack of consequences in the event [the distributor] breaches the contract, and the ownership of the rep’s] product ideas without evidence of what training [the distributor] provided [the rep] that equipped him with special knowledge needed to formulate product ideas.”  Id. at *43.  We are not so sure how these all go to supervision or control, but what troubles us more is that provisions requiring the rep to be accurate and complete in communicating on the products, to use only written materials he was provided, and to comply with applicable laws were also seen as evidence of employment.  Id. at **40-41.  These provisions, of course, are necessary given various FDA requirements on the marketing of medical devices.  We suspect that absence of such requirements as to reps who market a medical device, regardless of whether the manufacturer, distributor, or nobody employs the rep, could be seen as a lack of appropriate marketing practices by the manufacturer.  In effect, manufacturers would need to have reps bound by such provisions, even when the reps are set up as independent contractors of distributors.  The presence of such provisions, in turn, makes reps employees of the distributors (or, of the manufacturer in instances where there is a similar independent contractor agreement with the manufacturer).  Combined with the potential liability of the rep for breach of a novel duty running to the patient, this, in turn, greatly decreases the chance of complete diversity in an ensuing injury lawsuit.  This, in turn, greatly increases the chance for bad rulings and new ways to impose liability.  Like a Möbius strip of perpetually falling dominoes.