In January, I posted regarding the impact of the Florida Supreme Court’s decision in Aubin v. Union Carbide Corp., 177 So. 3d 489 (Fla. 2015). In that post I explained that even after Aubin, the consumer expectations test should not be applied in all design defect strict product liability cases because it is still up to the individual trial court judges to decide whether the consumer expectations and risk-utility tests should be given alternatively or together depending on the individual circumstances presented in each case. Some of the reasons for this conclusion included that the standard jury instructions remain unchanged; that numerous courts have ruled some products are too complex for the application of the consumer expectations test; that cases subject to the learned intermediary doctrine by definition involve a product too complex to permit the application of the consumer expectations test; and that the risk-utility test traces its roots to the Restatement (Second) of Torts, not the Restatement (Third) of Torts which was rejected in Aubin. Continue Reading Aubin v. Union Carbide—A Year Later
Not too long ago, I had the distinct pleasure of speaking at Shook Hardy & Bacon’s Update of the Law CLE conference in front of about 700 lawyers. Given the overlap in issues between emerging technologies like surgical robotics and 3D printing, I was asked to give a quick 15 minute presentation regarding 3D printing. In the video below you can watch that presentation. In it, I discussed the eight currently available 3D printing methods, how 3D printing is used, the numerous parties that may be implicated in a product liability lawsuit involving 3D printing, potential theories of liability against manufacturers who use 3D printing, and some possible available defenses. I concluded by offering some practical suggestions that manufacturers can implement to limit or eliminate liability in the event of litigation.
YouTube is a great educational resource. By watching a few videos, one can learn just about anything, from how to tie a fancy knot to how to assemble an internal combustion engine. The website also features numerous videos concerning various do-it-yourself medical procedures. Recently, my colleague Amy Foust and I viewed a fascinating video about an inexpensive surgical robot built by Designer Frank Kolkman using off-the-shelf components and easily accessible technologies like 3-D printing and laser cutting. This got us thinking: Is do-it-yourself surgery using homemade robots really a good idea? Continue Reading The Do-It-Yourself Surgery Genie is About to Escape the Bottle
Recently, James Ryan Morales from HealthAim reported on a new study at Children’s National Medical Center in Washington involving the Smart-Tissue Autonomous Robot (STAR) Project. In the study, a supervised autonomous robot performed soft-tissue surgery on a pig’s bowel, demonstrating that robots can now perform surgical operations with very minimal human supervision. It is, therefore, only a matter of time before fully autonomous surgical robots make their way into operating rooms across the country. And so, this begs the question: Will patients still be able to sue their human physicians for injuries allegedly sustained while under an autonomous surgical robot’s scalpel? Continue Reading Will the Rise of the Machine Mark the Fall of Med Mal?
Clinical robotics and other emerging technologies are profoundly reshaping the way in which medicine is practiced. One of those technologies, additive manufacturing—also known as 3-D printing—is helping usher in a new era of innovation and customization unlike anything that we have ever seen. But with this promising innovative technology also come many novel challenges, as both the industry and the law try to keep up with new developments. As 3-D printing becomes more widely adopted in the clinical robotics arena, an important question arises: What steps can traditional manufacturers take to lessen or eliminate their potential liability when using 3-D printing in the production process? Continue Reading Five Steps Robotic Manufacturers Can Take to Limit Liability When Using 3-D Printing
A couple of years ago, the FDA articulated its expectations for the ways device manufacturers should address cybersecurity premarket. More recently, FDA released a complementary draft guidance. Continue Reading FDA’s New Draft Guidance on Postmarket Cybersecurity Programs for Medical Devices
In Florida, there are two tests that a jury may apply in determining whether a product is defectively designed under a strict liability theory: the “consumer expectation test” and the “risk-utility test.” Plaintiffs usually prefer the consumer expectation test because it is generally easier for them to prove, while defendants prefer the “risk-utility test.” Late last year, the Florida Supreme Court issued its opinion in Aubin v. Union Carbide Corp., 177 So.3d 489 (Fla. 2015). Almost immediately, a number of commentators argued that Aubin spelled the end of the exclusive application of the risk-utility test in all Florida cases involving strict liability design defect claims. But is that really true? Continue Reading Following Aubin v. Union Carbide, Will Complex Medical Device Manufacturers Face an Uphill Battle in Defending Against Strict Liability Design Defect Claims in Florida?
Varun Saxena from Fierce Medical Devices recently reported that partners Johnson & Johnson and Google are designing their own robotic surgery devices, which “will compete with Intuitive in general surgery arenas, which include hernia repair and colorectal surgery.” The Johnson & Johnson endeavor was formed in collaboration with Google’s Verily Life Sciences and will operate under the name Verb Surgical Inc.. Continue Reading As New Players Enter the Robotic Surgery Field, the Legal Implications are Limitless
When filing their complaints, plaintiffs’ lawyers usually take the shotgun approach and throw in as many boilerplate allegations as they can think of. Oftentimes, many of these claims are easily disposed of by way of a motion either to dismiss or to strike, or later on down the road through dispositive briefing. But sometimes, certain allegations are made that raise eyebrows and leave even the most experienced litigator scratching her head. In August of this year, Intuitive Surgical was named as a defendant in a case venued in Miami-Dade County, Florida, involving the da Vinci Si HD Surgical System. See Seinfeld v. Intuitive Surgical, Inc., No. 2015-018171-CA-01. And this is one of those eyebrow-raising cases. Continue Reading Can a Complex Medical Device Require Too Much Training?
Recently, my colleagues Jim Muehlberger and Chris Wray made some really good points about robots functioning in permission-based occupations. Does the law permit a robot to serve as your cosmetologist? What about as your surgeon? Continue Reading Robots in Permission-based Occupations