Judge Predicts Pa. High Court Would Apply Comment k to Medical Devices

PHILADELPHIA — A Pennsylvania federal judge has predicted in an Ethicon pelvic mesh action that the state high court would apply comment k of the Restatement (Second) of Torts, §402A to strict liability design defect and failure to warn claims in medical device cases.

In a Feb. 11 order, Judge Joseph F. Leeson Jr. of the U.S. District Court for the Eastern District of Pennsylvania found the language of comment k expands its scope beyond prescription drugs to include medical devices that “cannot legally be sold except to physicians, or under the prescription of a physician.”

Plaintiff Michelle Brown …