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17-092 - Burningham et al v. Wright Medical Technology et al


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17-092 - Burningham et al v. Wright Medical Technology et al
January 23, 2018
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MEMORANDUM DECISION AND ORDER: Before the Court are Defendants' Motion to Dismiss and Motion to Strike 39. The Court grants the Motion to Dismiss in part and grants the Motion to Strike in its entirety. 1) The Court will issue a separate order certifying to the Utah Supreme Court the issue of comment k's application to implanted medical devices in Utah. 2) The Court orders the parties to meet, confer, and submit a proposed statement of facts and proposed questions for certification. They shall submit those to the court within fourteen days of this order. If the parties cannot agree upon stipulated facts or questions for certification, they shall submit their own proposals within the same period of time. 3) The Court will defer ruling on Plaintiffs' design defect claims arising in strict liability. However, discovery may proceed on those claims. 4) Plaintiffs' breach of express warranty claim is DISMISSED WITHOUT PREJUDICE. 5) Plaintiffs' negligent misrepresentation claims are DISMISSED WITHOUT PREJUDICE. 6) Paragraphs 64-86 of the amended complaint are STRICKEN pursuant to Rule 12(f). 7) Plaintiffs shall have thirty days from entry of this order to file a second amended complaint. Signed by Judge Jill N. Parrish on 1/22/18. (dla)
February 15, 2018
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Certification of Issue to State Supreme Court. Pursuant to Rule 41 of the Utah Rules of Appellate Procedure, the United States District Court for the District of Utah requests that the Utah Supreme Court answer the following questions of law: 1. Under Utah law, does the unavoidably unsafe exception to strict products liability in design defect claims recognized in Comment k to Section 402A of the Restatement (Second) of Torts apply to implanted medical devices?2. If the answer to Question 1 is in the affirmative, does the exception apply categorically to all implanted medical devices, or does the exception apply only to some devices on a case-by-case basis?3. If the exception applies on a case-by-case basis, what is the proper analysis to determine whether the exception applies?4. If the answer to Question 1 is in the affirmative, does the exception require a showing that such devices were cleared for market through the FDAs premarket approval process as opposed to the ยง 510(k) clearance process?These issues are controlling in this matter and there appears to be no controlling Utah law. Utah R. App. P. 41(c)(1). The court acknowledges that the Utah Supreme Court may reformulate these questions. See In re W. Side Prop. Assocs., 13 P.3d 168, 17071 (Utah 2000). Signed by Judge Jill N. Parrish on 2/15/2018. (jwt)