Because it is impossible to design a prescription drug that provides the desired health benefits with zero risk of harm, courts have long held that manufacturers of prescription drugs are not strictly liable for injuries these drugs cause. In recent years, courts around the country have begun to determine whether prescription medical-device makers merit the same treatment when confronted with strict liability claims.

The United States District Court for the Eastern District of Pennsylvania recently asked the U.S. Court of Appeals for the Third Circuit to answer whether Pennsylvania recognizes a strict liability claim for a manufacturing defect of a prescription medical device. Rosenberg v. C.R. Bard, Inc., — F. Supp. 3d —, 2019 WL 2596358 (E.D. Pa. 2019). This case is similar to one currently pending in the Utah Supreme Court, Burningham v. Wright Medical Group, which will answer a Certified Question from the United States District Court for the District of Utah of whether implanted medical devices fall under 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. (Washington Legal Foundation filed an amicus curiae brief in that case, urging the court to apply comment k categorically to prescription medical devices.)