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Cogswell v. Wright Medical Technology, Inc.

United States District Court, W.D. Pennsylvania

July 16, 2015



CATHY BISSOON, District Judge.

For the reasons stated below, the Wright Medical Technology Group's ("Defendant's") Motion to Dismiss (Doc. 4) will be GRANTED IN PART and DENIED IN PART.



Roy Cogswell ("Plaintiff" or "Mr. Cogswell")[1] alleges that on July 11, 2007, he underwent a right total hip replacement surgery, whereby his right hip was replaced with the Wright Hip System, designed, manufactured, and/or sold by Wright Medical Technology[2] ("Defendant"). Compl. (Doc. 1, Ex. A) ¶¶ 5-7. On March 31, 2008, Plaintiff underwent a left total hip replacement where he once again received the Wright Hip System. Id. at ¶¶ 8-9. Following these surgeries, Plaintiff alleges that he experienced pain in his right hip and underwent a revision surgery of his right hip, during which elements of the Wright Hip System were replaced with new parts. Id. at ¶¶ 10, 13-14. Following the revision surgery, Plaintiff alleges that he experienced further pain in his right hip and underwent a relocation surgery of the right hip, as the replacement had become dislocated. Id. at ¶¶ 17-18. Thereafter, Plaintiff alleges that he experienced additional complications for which he was hospitalized on several occasions. Id. at ¶ 19. Plaintiff alleges that Defendant's development and marketing of the defective Wright Hip System caused Plaintiff to undergo multiple hip operations and suffer serious medical complications. Id. at ¶ 36, 41.

Plaintiff and his wife, Nancy Cogswell (together, "Plaintiffs"), filed a ten-count Complaint in the Court of Common Pleas of Lawrence County on February 5, 2015, asserting causes of action in strict liability for manufacturing defect, failure to warn, and design defect (Counts I-III), as well as causes of action for negligence (Count IV), breach of express and implied warranties (Counts V-VI), fraudulent misrepresentation and fraudulent concealment (Counts VII-VIII), negligent misrepresentation (Count IX), and loss of consortium (Count X). The case was removed to this Court on March 3, 2015, on the basis of diversity jurisdiction. Notice of Removal (Doc. 1) ¶ 4. Defendant filed this Motion to Dismiss Counts I, II, III, V, VI, VIII, and IX on March 13, 2015, pursuant to Federal Rule of Civil Procedure 12(b)(6). Def.'s Mot. (Doc. 4).


A. Strict Liability - Manufacturing Defect (Count I)

Defendant contends that Plaintiff's strict liability claims for his medical device are barred by Pennsylvania law. Def.'s Br. in Supp. (Doc. 5), 3. Although the Pennsylvania Supreme Court has not explicitly held this to be the case, the Court is inclined to agree.

The Pennsylvania Supreme Court has held that, where a prescription drug is at issue, Comment k of the Restatement (Second) of Torts bars strict liability claims. Hahn v. Richter, 673 A.2d 888, 891 (Pa. 1996). Comment k, titled "Unavoidably unsafe products, " provides that:

[t]here are some products which, in the present state of human knowledge, are quite incapable of being made safe for their intended and ordinary use. These are especially common in the field of drugs... Such a product, properly prepared, and accompanied by proper directions and warning, is not defective, nor is it unreasonably dangerous. The seller of such products... is not to be held to strict liability for unfortunate consequences attending their use, merely because he has undertaken to supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.

Restatement (Second) of Torts § 402A cmt. k (1965) (emphasis in original). The Pennsylvania Supreme Court later returned to its holding in Hahn and again declined to hold prescription drug manufacturers strictly liable, consistent with the language of Comment k. Lance v. Wyeth, 85 A.3d 434, 438 (Pa. 2014). The Pennsylvania Superior Court has outlined the policy reasons for this position, explaining that prescription drugs are both inherently dangerous and greatly beneficial to society. Hahn v. Richter, 628 A.2d 860, 871 (Pa. Super. Ct. 1993) aff'd, 673 A.2d 888 (Pa. 1996). To hold manufacturers of prescription drugs liable for "unforeseeable reactions to their products... would stifle the incentive to produce new products." Id.

Plaintiff argues that although Comment k applies to prescription drugs, it does not apply to the product at issue here, which is a medical device. Pl.'s Br. in Opp'n (Doc. 11) at 4. Plaintiff argues that the Wright Hip System is distinguishable from prescription drugs, which are unavoidably unsafe, because the risks alleged in this case could have been avoided. Id. at 5. Such a distinction, according to Plaintiff, weighs in favor of declining to read Comment k as applicable in the instant case. This particular argument is unpersuasive, as the law in Pennsylvania requires the Court to determine the application of Comment k categorically, not to conduct a case-by-case analysis of each particular product. Lance, 85 A.3d at 442 n. 11, 452 n. 21; see Kee v. Zimmer, Inc., 871 F.Supp.2d 405, 410 (E.D. Pa. 2012).

Although the Pennsylvania Supreme Court has not yet decided whether the application of Comment k extends to medical devices, the Superior Court of Pennsylvania explained that there is "no reason why the same rational [ sic ] applicable to prescription drugs may not be applied to medical devices." Creazzo v. Medtronic, Inc., 903 A.2d 24, 31 (Pa. Super. Ct. 2006) (affirming the trial court determination that the plaintiffs' strict liability claim for a medical device was barred by Comment k). Several federal district courts applying Pennsylvania law have similarly extended the application of Comment k to medical devices. See, e.g., Terrell v. Davol, Inc., No. 13-5074, 2014 WL 3746532, at *4 (E.D. ...

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