Products Liability Law Reporter

A U.S. district court held that dismissal of a plaintiff’s strict products liability and negligence claims was not warranted in a lawsuit alleging liability for injuries he suffered from the Bard PowerPort M.R.I. Implantable Port (PowerPort) he had to facilitate his chemotherapy.

Reydon Recker had a PowerPort implanted so that he could receive chemotherapy. Within three months, the PowerPort allegedly detached and migrated into his right internal jugular vein. This necessitated that he undergo major surgery to remove the device and address complications.

Recker sued C.R. Bard, Inc., and Bard Access Systems, Inc., alleging negligence; breach of express warranty; and strict liability failure to warn, manufacturing defect, and design defect. The defense moved to dismiss.

Granting in part and denying in part, the district court first considered the defendants’ argument that the complaint did not outline the applicable elements necessary for a negligence claim—specifically duty, breach, and proximate cause. The court disagreed with the defense and found that the plaintiff had stated the duty of reasonable care owed by the defense in manufacturing, marketing, advertising, distributing, selling, and conducting post-market surveillance of the PowerPort and outlined multiple alleged breaches of this duty, including the defendants’ alleged failure to properly test the PowerPort or warn of its alleged propensity to migrate. The plaintiff also described a causal nexus between his injuries and the device, which detached and migrated within his body, the court said, concluding that the plaintiff thus had stated a plausible negligence claim.

The court also concluded that the plaintiff had properly stated a claim of strict products liability. The plaintiff alleged that the defendants’ product had led to his injuries, the defect existed at the time of sale, and the defect was of such a nature that made the product unreasonably dangerous. For his failure to warn claim, the court found, the plaintiff specifically alleged that the PowerPort had detached and migrated, the defendants had knowledge of numerous reports of such migration and resultant injuries, and the defendant had failed to warn physicians of these dangers. Regarding manufacturing defect, the court said, the plaintiff identified the PowerPort’s two primary components and then identified the catheter component part as defective and present when the product left the defendants’ possession and control. The plaintiff also alleged that a design defect had caused the PowerPort’s catheter to detach and migrate and that this alleged defect was also present at the time the PowerPort had left the defendants’ control.

The court nevertheless found that the plaintiff’s breach of express warranty claim was insufficient. The court noted that although the plaintiff broadly asserted that the defendants’ officers, directors, agents, and written packaging expressly warranted that the PowerPort was safe for consumer use, the plaintiff did not identify the specific statements on which his warranty claims were based. Citing case law, the court concluded that his failure to do so renders his allegations conclusory and warrants dismissal of his breach of warranty claim.

Citation: Recker v. C.R. Bard, Inc., 2020 WL 5823540 (W.D. Okla. Sept. 30, 2020).

Plaintiff counsel: AAJ member T. Luke Abel, Oklahoma City; and Adam Evans and Troy Brenes, both of Aliso Viejo, Calif.