ABA’s Products Liability Litigation Newsletter publishes “Does a Sales Representative Owe a Duty to a Patient?” by Robyn MaguirePrint PDF
Robyn Maguire, a partner in the Product Liability and Toxic Tort Litigation practice group, published “Does a Sales Representative Owe a Duty to a Patient?” in the Winter 2015 issue of the American Bar Association (ABA) Section of Litigation’s Products Liability Litigation Newsletter.
The article takes an in-depth look at a medical device sales representative’s liability for negligent failure to warn. Medical device sales representatives are being sued in products cases not just because they may be part of the chain of distribution, but also because they may have promoted a product for an off-label use (or prevented the doctor from using the product for an off-label use) or because, under common-law negligence theories, they are alleged to have breached some unidentified duty to the patient during a surgical procedure: a duty to instruct the surgeon on how to use a prescription medical device, a duty to prevent the surgeon from using the device improperly, a duty to train the surgeon, and so on.
Robyn notes that sales representative liability has become a topic of increasing interest within the legal community, and courts are just beginning to consider these newly created alleged duties, including how they jibe with longstanding tenets like the learned intermediary doctrine.
To view the article, click here.