The plaintiff in Kane v. Covidien LP, 2025 U.S. Dist. Lexis 25718 (E.D.N.Y. Feb. 12, 2025), lost the bulk of her case recently, on a motion to dismiss no less. In this case involving surgical staples, strict liability and negligence claims (which, in New York, are “functionally synonymous,” id. at *18) for design and manufacturing defects bit the dust. Some unusual fact questions also remained open, neither of which bode well for the plaintiff: (1) was the surgeon that wrote the operative report “even present” for the . . . the surgery”; and (2) why did the surgeon report a “malfunction” to a representative of a different surgical stapler manufacturer, instead of any of the defendants? Id. at *14-15.
Kane also involved the usual plaintiff failure to plead anything of substance about the purported “defects” in the defendant’s stapler, but some of the additional reasons for dismissing plaintiff’s claims are quite interesting.
New York is one of those sensible states that requires a plaintiff attacking a product’s design to put up or shut up, with a feasible alternative design. Id. at *19. “A design defect claim is subject to dismissal where the plaintiff fails to allege with sufficient specificity how the design is defective or identify the existence of a feasible alternative design.” Id. at *19-20 (citation and quotation marks omitted). The plaintiff must also plead that “product as designed posed a substantial likelihood of harm,” and causation. Id. at *19.
Plaintiff struck out, primarily because, rather than identifying a supposedly feasible alternative design and asserting product-specific facts, she launched an unfocused attack on surgical staplers generally, regardless of who made them. That attack was not persuasive.
Based on [plaintiff’s] description, however, the statistics referenced appear to concern surgical stapling devices generally, not necessarily the specific Surgical Stapler at issue here. Moreover, the Amended Complaint’s allegation that 60 mm staplers have a higher propensity for failure is insufficient to establish that [this device’s] 60 mm specification is an “unreasonably dangerous” design defect as opposed to a necessary feature for serving its function.
Kane, 2025 U.S. Dist. Lexis 25718 at *20-21 (citations omitted).
We’ve pointed out before that New York federal courts are known for their excellent TwIqbal jurisprudence. Kane is another example.
Nor does the bare existence of other staple sizes qualify as a viable alternative design:
[Plaintiff’s] allegation that [other sized] stapling devices exist does not establish that such devices would be a “reasonable alternative design”. . . . The Amended Complaint does not address what range of staple heights would be compatible with [the] stapling . . . done during [this] surgery. In other words, it does not plead facts showing that [other sized] stapling devices would be reasonable alternative designs for use in the type of . . . surgery.
Id. at *21 (citations and quotation marks omitted). Because some sizes of staples are “incompatible with a specific tissue’s thickness and biochemical properties,” plaintiff’s broad-brush claims didn’t cut it under TwIqbal. Id.
Nor did the surgeon’s notes of a “stapler failure” suffice to plead causation. While the cryptic note was “enough” to support an “inference” that the failure caused an injury to the plaintiff, that wasn’t enough under New York (or any other...
