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Nicole Weber v. Allergan, Inc.
Paid petition · United States Court of Appeals for the Ninth Circuit, No. 18-15212 · judgment October 11, 2019
Before the decision, modestly above the 4.1% base rate. The model weighted this up for a Ninth Circuit decision below, a circuit split argued in the petition, and a petition filed soon after the judgment below, and down for a business respondent.
Question presented
Nicole Weber suffered severe damage to her eyesight and other injuries when an Allergan breast implant spewed silicone into her body. Nicole sued, asserting state-law, strict-product liability for a manufacturing defect. To prove that, she relied in part on res ipsa loquitur. But the Ninth Circuit approved the district court’s grant of summary judgment against her because it concluded that:
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Nicole could not use the res ipsa loquitur doctrine to help prove a manufacturing defect. App. 9-10.
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Allergan’s avowal in the breast-implant’s labeling that over 99% of the gel would stay inside the implant did not constitute an FDA pre-market approval requirement. Thus, the right-breast implant’s 2.8% silicone bleed supposedly violated no FDA requirement. App. 8, 10-13.
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The fact that Nicole’s right-breast implant failed supposedly “does not show that Allergan failed to comply with the FDA’s Current Good Manufacturing Practices.” App. 14. With that background, these are the questions for this Court:
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Can a plaintiff use the res ipsa loquitur doctrine as evidence that a Class III product had a manufacturing defect?
Counsel of record
For petitioner
David Lawrence Abney
Ahwatukee Legal Offices, P.C.
For respondent
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Case
Conference history
Distributed for 1 conference
Proceedings
- Mar 23 2020Petition DENIED. Justice Alito took no part in the consideration or decision of this petition.
- Feb 26 2020DISTRIBUTED for Conference of 3/20/2020.
- Jan 09 2020Petition for a writ of certiorari filed. (Response due February 12, 2020)