When Products Liability Intersects with Malpractice Strategy

In order to avoid unfavorable precedent on federal preemption of state law claims based upon FDA-approved Class III medical devices, and to nullify the impact of the learned intermediary defense by having both manufacturer and intermediary present in the case, plaintiffs increasingly seek to join both medical provider and manufacturer in one suit. Such suits will contain both product liability claims against the medical device manufacturer and medical malpractice claims against diversity-destroying physicians and hospitals. As a result, physicians and device manufacturers, more frequently than ever, are finding themselves as uncomfortable and unwilling bedfellows in litigation involving a prescription medical device. Because the interests of medical providers and manufacturers may often seem at odds, certain strategic considerations should govern both parties' planning for the litigation in order to avoid common pitfalls. Many of these same situations will also arise in cases in which both pharmaceutical manufacturers and medical providers are defendants.

Another consideration is that, in cases involving both a medical provider and a device manufacturer, plaintiffs will often seek to create and exploit some natural friction between the interests of multiple co-defendants to their own advantage. Savvy defense counsel for physicians or hospitals would therefore be well-advised to watch for certain likely roadblocks that may arise or be placed in their way by plaintiffs. All defendants benefit when they can 'hold hands and play nice' together to defeat the plaintiffs' claims and present the strongest possible defense at trial.