After eight hours of deliberations, a Montana jury found that a Breg infusion shoulder pump was defective and caused injury to an orthopedic surgeon.
Plaintiff’s verdict? Not so fast. The jury found the product was defective but that the infusion pump conformed to the state-of-the-art design at the time it was sold. This can be fatal to a failure to warn claim.
The state-of-the-art defense under Maryland law in strict liability, failure to warn cases was explained in the landmark claim of Owens-Illinois Inc. v. Zenobia (which is best known for requiring actual malice for punitive damages in Maryland). Zenobia found that the manufacturer of a product, which is defective only because of the lack of an adequate warning, is not liable when the failure to warn resulted from an absence of knowledge of how dangerous the product was. Still, required knowledge is “knew or should have known” – it can be established by evidence that the risk should have been known because it was known in the scientific or expert community. This knowledge is called the ‘state of the art’ evidence.
Essentially, the jury said that while the Breg infusion pump was defective and unreasonably dangerous and that it lacked a sufficient warning, the design was state-of-the-art. Basically, the product was awful but it was as good as it got at the time. A pretty bitter pill for the Plaintiff in this case to swallow as he walks around treating patients while dealing with post-arthroscopic glenohumeral chondrolysis.
You can listen to the defense lawyers brag about it here.