Congressional Democrats Move Might Make It Easier to Sue Medical Device Manufacturers

Now that the U.S. Supreme Court has ruled that patients can sue pharmaceutical companies in state courts, the ability to sue makers of medical-devices might not be far behind.

Congressional Democrats have proposed making it easier to sue manufacturers of medical devices. Democratic lawmakers in the House and Senate have introduced legislation that would allow product liability suits in state courts by patients who claim to have been harmed by certain defective medical devices, such as heart valves and artificial knees.

The Medical Device Safety Act of 2009 would overturn the Court’s 2008 ruling in Riegel v. Medtronic, which dismissed a lawsuit over a ruptured catheter. That ruling brought whoops of joy from medical device firms, who had long lobbied for a position that federal law blocked, or preempted, such suits. But the Supreme Court changed the landscape yesterday in Wyeth v. Levine when it upheld a $6.7 million state jury verdict won by a musician from Vermont whose arm was amputated after being injected with an anti-nausea drug.

The question now is whether the proposed legislation has enough votes to pass, especially in the Senate where Minnesota Senator-elect Al Franken has yet to be seated.

No doubt it will be a difficult measure to muster enough votes for either in the House or Senate. Mark Hermann, a Jones Day lawyer who represents pharmaceutical and medical device companies, as well as a drug and device law blogger, noted that the federal law for medical devices contains a provision which specifically addresses the pre-empting of state laws and requirements, while the federal law pertaining to pharmaceuticals does not.

“If enacted, this legislation would effectively allow state courts to review medical devices and ultimately lead to a patchwork of inconsistent and confusing guidance on the use of medical treatments for patients and physicians, or limit their availability altogether,” wrote AdvaMed, in a news release.

Until a resolution ensues, plaintiff’s lawyers expect companies will continue seeking to dismiss liability lawsuits filed in state courts citing the Supreme Court’s 2008 decision. In January 2009, a federal judge in Minneapolis threw out lawsuits filed on behalf of thousands of patients who received heart defibrillators with wires capable of fracturing and producing lethal shocks.

Alexandra Reed writes for Connecticut personal injury law firm, Stratton Faxon.

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