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Public Policy and the Preemption of State Tort Claims against Medical Device Manufacturers (cont'd)

Preemption and Summary Judgment[index]

A summary judgment is a decision by a judge to end a case and give a verdict for one side without going to trial. Summary judgments are usually awarded to defendants rather than plaintiffs because it is the plaintiff's burden to convince the court that there is enough evidence to go to trial. If the United State Supreme Court rules that the MDA preempts tort claims, then defendants in medical device cases will be able to obtain summary judgments early in litigation.

The Bendectin cases illustrate the importance of summary judgments in resolving technically difficult cases. Bendectin was removed from the market because the cost of the defending the lawsuits against the manufacturer was too high, not because the plaintiffs were winning the cases. The modern plaintiffs' bar is highly sophisticated, well-financed, and supported by eminently effective national trial lawyers organizations. Plaintiff's lawyers do not need to win every case they try to force manufacturers into favorable settlements, they need only keep up the litigation pressure.

Win or lose, the defendant faces hundreds of thousands of dollars in defense costs and the lost time of corporate personnel in every case that is allowed to proceed past the summary judgment stage. If defendant were making a product with a huge consumer market such as automobiles or televisions, it would have sufficient revenue to weather such a litigation onslaught. For medical devices, however, it will still be economically impossible to continue insuring the product and it will be removed from the market. A small device manufacturer will be threatened with bankruptcy, potentially depriving the market of its products. Most large device manufacturers will survive the litigation, but will remove the litigated product from the market, irrespective of its potential benefit.

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