For the Defense

Authors: Jennifer A. Eppensteiner Regina M. Nelson

Medical device manufacturers often find themselves having to defend unique theories of liability. “Failure to train” arguments are becoming increasingly popular among plaintiffs, and while no court has ruled directly on the argument in a medical device or pharmaceutical case, this has not prevented this theory from appearing in newly filed product liability actions against device manufacturers. Even in many instances when medical device manufacturers have offered programs to train physicians on the proper use of their products, when the procedures have resulted in adverse outcomes, plaintiffs still have argued that those companies were liable. In other cases, plaintiffs seek to impose heightened duties on device manufacturers to prevent misuse of their products by physicians. Recent case law may be instructive in responding to these arguments.

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