Protecting Against Unique Claims Regarding Medical Device Sales Reps

In recent years, pharmaceutical and medical device manufacturers have faced an increased number of creative product liability claims arising from alleged actions of their sales representatives. Medical device manufacturers may face a challenge in preventing these claims because of the unique role of these representatives. Medical device sales representatives, as compared with pharmaceutical sales representatives, may be present during patient-physician visits to provide technical support for the device or instrumentation. This distinct role makes medical device manufacturers susceptible to allegations that the sales representative somehow improperly inserted herself or himself into the patient-physician relationship or otherwise affected patient care. Unlike cases involving allegations regarding pharmaceutical sales representatives, there are few rulings in cases with claims involving medical device sales representatives. Further, it is unclear what the effect of the recent U.S. Supreme Court opinion in Riegel v. Medtronic, 128 S. Ct. 999 (2008), will be on these claims. Although this is a developing area of the law, recent court decisions can provide medical device manufacturers with some insight into pertinent training topics for its sales force, in order to protect against these types of claims.