Here are a couple of recent developments that we don’t want to let get stale.
Oglesby v. Medtronic, Inc., 2024 WL 1283341 (5th Cir. March 26, 2024), is an excellent, but unfortunately unpublished, affirmance of summary judgment under Texas law in medical device case. Plaintiff brought various claims, and appealed the dismissal of two of them, the allegations of manufacturing defect and inadequate warnings.
As to manufacturing defect, the plaintiffs did what plaintiffs usually do with such claims – fail to allege what the actual defect was. In Texas (as elsewhere) “[a] manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output.” 2024 WL 1283341, at *1 (citation and quotation marks omitted). Rather than have any theory of what that deviation might have been, plaintiffs claimed that the medical device had “malfunctioned” and that the claimed malfunction in and of itself was sufficient “circumstantial evidence” of a defect. Id. at *1-2.
No way – at least not in Texas.
Oglesby correctly rejected the 30+ year old intermediate appellate decisions plaintiffs cited in favor of more recent decisions by the Texas Supreme Court: Gharda USA, Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 352 (Tex. 2015) (“[t]o be successful on a manufacturing defect claim, the plaintiff must identify a specific defect by competent evidence”); Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 42 (Tex. 2007) (“the deviation from design that caused the injury must be identified”); Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 137 (Tex. 2004) (“a specific defect must be identified by competent evidence”). Thus, “plaintiffs must allege a specific deviation from the product’s intended design that allegedly caused the injury”). Norman v. Bodum USA, Inc., 44 F.4th 270, 272 (5th Cir. 2022). In Oglesby, the plaintiffs didn’t even try to meet their manufacturing defect burden. “[N]one of [their] evidence establishes a specific manufacturing defect.” 2024 WL 1283341, at *2.
While a specific defect may be proven by circumstantial evidence, that does not eliminate the requirement to allege the existence of a specific defect in the first place. Oglesby failed to do so.
Nor did plaintiffs rule out other possible reasons for the claimed product failure, since their own expert opined that it was equally likely that something other than a product defect could have occurred. “When the circumstances are equally consistent with either of two facts, neither fact may be inferred.” Id. (citation and quotation marks omitted).
Ditto for...
