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In a Preliminary Statement issued by the Supreme Court, Nassau County on September 30, 2011, the case of Varveris v. Orthopaedic and Sports Associates of Long Island will be allowed to proceed, with some of the causes of action against the defendant dismissed and others upheld.
The plaintiff in this case is alleging personal injury as a result of two reconstructive shoulder surgeries, the second of which involved the insertion of a pain pump into the shoulder joint space. Pain pumps continue to be utilized in shoulder surgeries, despite an FDA Safety Alert that such use can cause severe, lasting pain and cartilage damage.
The plaintiff has sued under many different legal theories, including strict products liability, negligent manufacture and distribution, breach of express warranties, breach of implied warranties, consumer fraud, and more. In response, the defendant, pain pump manufacturer I-Flow, Inc. moved to dismiss several causes of action under different legal theories, some of which were granted and others denied. The claim for punitive damages, and the causes of action based on fraud have been dismissed, but the claims brought under strict products liability and breach of warranty may proceed.
The defendant claimed that its pain pump is an “unavoidably unsafe product” which can not be considered defective or unreasonably dangerous as long as proper directions for use and adequate warnings of potential side effects are included. The manufacturer further argued that it cannot be held strictly liable since the pain pump is only sold to physicians or by doctor prescription. The court disagreed. While the type of information and warning required may be different since the product is offered to or through the physician rather than directly to the patient, the manufacturer must still show that it provided adequate information and warning to the medical community.
This part of the case focuses on whether I-Flow expressly warranted that its pain pumps were safe and well-accepted by users. Despite the defendant’s attempts to dismiss this part of the complaint, the court believes the plaintiff should have the opportunity to gather evidence and present its case at trial.
Products liability cases are often quite complex and vigorously fought by the corporate defendants and their lawyers. In order to succeed, the plaintiff’s attorney must not only know the law but must also have the skills and resources necessary to marshal all the evidence and oppose continued attempts by the defense to dismiss the case at every possible stage. In New York, contact Leandros A. Vrionedes, P.C. for a personal injury and products liability lawyer with the skill and tenacity to stand up to pharmaceutical giants and big business and hold them accountable when their products cause unnecessary harm.