Drug and Device Blog
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Dechert LLP
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The Learned Intermediary And Implied Warranties
Thursday, November 10, 2011
In a relatively recent case, Currier v. Stryker Corp., 2011 WL 4898501 (E.D. Cal. Oct. 13,
2011), the court stated, with respect to a claim for implied warranty:
“Because this is a medical implant case, and the [complaint] alleges that the product was surgically inserted
in a hospital, the Court cannot plausibly infer from the [complaint] that Plaintiff relied on anything other than
his physician's skill and judgment in selecting the . . . product, nor that any purchase of the product was
based on a warranty from the manufacturer to Plaintiff. The Court cannot plausibly infer that there is a
relationship between the Defendants and Plaintiff that would allow Plaintiff to state a breach of warranty
claim.”
Id. at *4. The court seems to be saying that, in a prescription medical product liability case,
there can’t be an implied warranty claim unless the plaintiff, as opposed to the prescribing
physician, relied on the alleged warranty. That's useful. We’re sure that this is to some extent
grounded in the general California rule requiring privity in express warranty cases, but we
thought we’d take a look and see what else may be out there.
The first place we checked, obviously, is the case that the court cites for the proposition,
Adams v. I-Flow Corp., 2010 WL 13399488 (C.D. Cal. March 30, 2010), and sure enough, we
find pretty much the same thing. “In the context of prescription medical devices and
pharmaceuticals, the transaction is between the manufacturer and the physician, not the
patient.” Id. at *4. The complaint was simply “devoid of any facts suggesting that plaintiffs
relied upon anything other than their physicians' skill and judgment in selecting and prescribing
the [drugs and devices].” Id.
Both Currier and Adams cite another California case, Blanco v. Baxter Healthcare Corp., 70
Cal.Rptr.3d 566 (App. 2008), and there we find more of the same:
“Here, there is no evidence [plaintiff] relied on [defendant manufacturer’s] judgment that the [product] was
appropriate for her. Rather, she relied on her physician’s skill and judgment to select the [product], as
evidenced by the fact it was prescribed by a licensed physician. Accordingly, we conclude [plaintiff] cannot
sue [defendant] for breach of implied warranties.”
