Law

Have these statutes been applied to the distributors of prescription medical products?  Yes, we’re happy to report, and that’s what this post is about.

For some reason this issue has come up a lot in Kentucky.  The Sixth Circuit affirmed the applicability of the Kentucky “middleman” statute to a pharmacy in Flint v. Target Corp., 362 F. Appx. 446, 449 (6th Cir. 2010).  The issue was discussed at some length in another pharmacy case, Smith v. Wyeth Inc., 488 F. Supp.2d 625 (W.D. Ky. 2007), that also found that the defendant was qualified as a “middleman” selling prescription drugs:

In Georgia, an appellate court held that “strict product liability applies only to a manufacturer, not a ‘product seller,” and further that “a pharmacist and pharmacy that package and label drugs manufactured by another are product sellers, not manufacturers, within the meaning of strict product liability.”  Robinson v. Williamson, 537 S.E.2d 159, 161 (Ga. App. 2000).  Accord Wheat v. Sofamor, S.N.C., 46 F. Supp.2d 1351, 1365-66 (N.D. Ga. 1999) (defendant that “is not a product manufacturer . . . cannot be held strictly liable for any alleged product defect” under Georgia statute); Jones v. Sofamor S.N.C., 1999 WL 1062103, at *9 (N.D. Ga. April 29, 1999) (same).

In Missouri, the state’s “innocent seller” statute is “an independent basis for granting [a distributor] summary judgment.”  In re Temporomandibular Joint (TMJ) Implants Products Liability Litigation, 97 F.3d 1050, 1059 (8th Cir. 1996) (affirming dismissal of medical device distributors under Missouri and Tennessee law).  Missouri’s statute supported a fraudulent joinder holding regarding a distributor in a tampon suit:

Tennessee has a “sealed container” type statute restricting distributor liability.  It was applied in product liability case involving a medical device (a bronchoscope) in Young v. Olympus America Inc., 2010 WL 1856539 (W.D. Tenn. May 5, 2010), motion to amend denied, 2010 WL 2985796 (W.D. Tenn. July 26, 2010):

In Moore v. Johnson & Johnson, 907 F. Supp.2d 646 (E.D. Pa. 2012), reconsideration denied, 2013 WL 5298573 (E.D. Pa. Sept. 20, 2013), the court invoked the Washington distributor statute as the basis for finding fraudulent joinder in an OTC drug case, where a pharmacy also qualified as a distributor:

Most recently, in Wornner v. Christian Home Health Care, Inc., 2014 WL 130331 (E.D. La. Jan. 14, 2014), another fraudulent joinder case, the Louisiana statute precluding distributor liability was conclusive, since there was no evidence establishing its status as a “manufacturer,” and “[n]either has Plaintiff sufficiently alleged that [the distributor] should be held liable as a non-manufacturing seller of a defective product because she has failed to allege that [it] knew or should have known of any defect in the [medical device].”  Id. at *4.

In another recent case, the Illinois distributor statute preclude liability, even under a fraudulent joinder standard in Millman v. Biomet Orthopedics, Inc., 2013 WL 6498394, at *4-5 (N.D. Ind. Dec. 10, 2013).  Plaintiff did not challenge the affidavit establishing that the supplier did not create the defect, participate in the medical device’s design or manufacture, and had no actual knowledge of the defect.  Id. at *2.  Interestingly, the distributor prevailed even though its representative was present for the surgery at issue.  Id. at *5 (representative being an “observer” at surgery “doesn't equate to a claim that the [distributor] ‘participated’ in the surgical procedure”).  Accord In Re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 692 F. Supp.2d 1012, 1020-21 (S.D. Ill. 2010), aff’d, 643 F.3d 994, (7th Cir. 2011) (Illinois distributor statute requires dismissal of pharmacy); In Re Yasmin & Yaz (Drospirenone) Marketing, Sales Practices & Products Liability Litigation, 2010 WL 4904488, at *3 (S.D. Ill. Nov. 24, 2010) (same).

A similar Ohio supplier’s statute precluded liability in King v. Centerpulse Orthopedics, Inc., 2006 WL 456478 (N.D. Ohio Feb. 24, 2006).  Plaintiff could not credibly allege that the supplier made any representation about the product.  Id. at *5.  Nor, given the lack of allegations in the complaint, could the supplier otherwise be liable, because the other theories “requires active conduct by the supplier that causes or contributes to the plaintiff’s injury.”  Id. at *3.  See also Szanto v. Target Corp., 2010 WL 346297, at *9-10 (Minn. App. Feb. 2, 2010) (affirming dismissal of distributor of OTC drug under Minnesota statute); Smith v. Alza Corp., 948 A.2d 686, 693 (N.J. Super. App. Div. 2008) (New Jersey statute provides “immunity to retailers and wholesalers who have no significant responsibility for the alleged product defect”); Braswell v. Invacare Corp., 2009 WL 3735986, at *3 (S.D. Miss. Nov. 5, 2009) (distributor held fraudulently joined under Mississippi statute); Thornburg v. Stryker Corp., 2006 WL 1843351, at *3-4 (Mag. S.D. Ind. June 29, 2006), adopted, 2006 WL 2191979 (S.D. Ind. Aug. 1, 2006) (Indiana statute required dismissal of device distributor); Landree v. University Medical Products USA, Inc., 2004 WL 413287, at *2 (D. Minn. March 1, 2004) (summary judgment granted under Minnesota statute; where no evidence of actual distributor knowledge of defect); Uribe v. Sofamor, S.N.C., 1999 WL 1129703, at *18 (D. Neb. Aug. 16, 1999) (summary judgment granted to device distributor under Nebraska statute barring non-manufacturer liability); cf. Paracelsus Healthcare Corp. v. Philips Electronics North America, 2001 WL 627428, at *4 (D.N.D. May 7, 2001) (some claims dismissed under North Dakota statute in economic loss suit brought by hospital purchasing a device).