21 USC 1604 – Liability of biomaterials suppliers
(a) In general
Except as provided in section 1606 of this title, a biomaterials supplier shall not be liable for harm to a claimant caused by an implant unless such supplier is liable—
(1) as a manufacturer of the implant, as provided in subsection (b);
(2) as a seller of the implant, as provided in subsection (c); or
(3) for furnishing raw materials or component parts for the implant that failed to meet applicable contractual requirements or specifications, as provided in subsection (d).
(b) Liability as manufacturer
(1) In general
A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable for harm to a claimant caused by an implant if the biomaterials supplier is the manufacturer of the implant.
(2) Grounds for liability
The biomaterials supplier may be considered the manufacturer of the implant that allegedly caused harm to a claimant only if the biomaterials supplier—
(A)(i) registered or was required to register with the Secretary pursuant to section 360 of this title and the regulations issued under such section; and
(ii) included or was required to include the implant on a list of devices filed with the Secretary pursuant to section 360(j) of this title and the regulations issued under such section;
(B) is the subject of a declaration issued by the Secretary pursuant to paragraph (3) that states that the supplier, with respect to the implant that allegedly caused harm to the claimant, was required to—
(i) register with the Secretary under section 360 of this title, and the regulations issued under such section, but failed to do so; or
(ii) include the implant on a list of devices filed with the Secretary pursuant to section 360(j) of this title and the regulations issued under such section, but failed to do so; or
(C) is related by common ownership or control to a person meeting all the requirements described in subparagraph (A) or (B), if the court deciding a motion to dismiss in accordance with section 1605(c)(3)(B)(i) of this title finds, on the basis of affidavits submitted in accordance with section 1605 of this title, that it is necessary to impose liability on the biomaterials supplier as a manufacturer because the related manufacturer meeting the requirements of subparagraph (A) or (B) lacks sufficient financial resources to satisfy any judgment that the court feels it is likely to enter should the claimant prevail.
(3) Administrative procedures
(A) In general
The Secretary may issue a declaration described in paragraph (2)(B) on the motion of the Secretary or on petition by any person, after providing—
(i) notice to the affected persons; and
(ii) an opportunity for an informal hearing.
(B) Docketing and final decision
Immediately upon receipt of a petition filed pursuant to this paragraph, the Secretary shall docket the petition. Not later than 120 days after the petition is filed, the Secretary shall issue a final decision on the petition.
(C) Applicability of statute of limitations
Any applicable statute of limitations shall toll during the period from the time a claimant files a petition with the Secretary under this paragraph until such time as either (i) the Secretary issues a final decision on the petition, or (ii) the petition is withdrawn.
(D) Stay pending petition for declaration
If a claimant has filed a petition for a declaration with respect to a defendant, and the Secretary has not issued a final decision on the petition, the court shall stay all proceedings with respect to that defendant until such time as the Secretary has issued a final decision on the petition.
(c) Liability as seller
Terms Used In 21 USC 1604
- biomaterials supplier: means an entity that directly or indirectly supplies a component part or raw material for use in the manufacture of an implant. See 21 USC 1602
- claimant: means any person who brings a civil action, or on whose behalf a civil action is brought, arising from harm allegedly caused directly or indirectly by an implant, including a person other than the individual into whose body, or in contact with whose blood or tissue, the implant is placed, who claims to have suffered harm as a result of the implant. See 21 USC 1602
- Contract: A legal written agreement that becomes binding when signed.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Docket: A log containing brief entries of court proceedings.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- harm: means &mdash. See 21 USC 1602
- implant: means &mdash. See 21 USC 1602
- manufacturer: means any person who, with respect to an implant&mdash. See 21 USC 1602
- Secretary: means the Secretary of Health and Human Services. See 21 USC 1602
- seller: means a person who, in the course of a business conducted for that purpose, sells, distributes, leases, packages, labels, or otherwise places an implant in the stream of commerce. See 21 USC 1602
- Statute: A law passed by a legislature.
- Statute of limitations: A law that sets the time within which parties must take action to enforce their rights.
A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable as a seller for harm to a claimant caused by an implant only if—
(1) the biomaterials supplier—
(A) held title to the implant and then acted as a seller of the implant after its initial sale by the manufacturer; or
(B) acted under contract as a seller to arrange for the transfer of the implant directly to the claimant after the initial sale by the manufacturer of the implant; or
(2) the biomaterials supplier is related by common ownership or control to a person meeting all the requirements described in paragraph (1), if a court deciding a motion to dismiss in accordance with section 1605(c)(3)(B)(ii) of this title finds, on the basis of affidavits submitted in accordance with section 1605 of this title, that it is necessary to impose liability on the biomaterials supplier as a seller because the related seller meeting the requirements of paragraph (1) lacks sufficient financial resources to satisfy any judgment that the court feels it is likely to enter should the claimant prevail.
(d) Liability for failure to meet applicable contractual requirements or specifications
A biomaterials supplier may, to the extent required and permitted by any other applicable law, be liable for harm to a claimant caused by an implant if the claimant in an action shows, by a preponderance of the evidence, that—
(1) the biomaterials supplier supplied raw materials or component parts for use in the implant that either—
(A) did not constitute the product described in the contract between the biomaterials supplier and the person who contracted for the supplying of the product; or
(B) failed to meet any specifications that were—
(i) accepted, pursuant to applicable law, by the biomaterials supplier;
(ii) published by the biomaterials supplier;
(iii) provided by the biomaterials supplier to the person who contracted for such product;
(iv) contained in a master file that was submitted by the biomaterials supplier to the Secretary and that is currently maintained by the biomaterials supplier for purposes of premarket approval of medical devices; or
(v) included in the submissions for purposes of premarket approval or review by the Secretary under section 360, 360c, 360e, or 360j of this title, and received clearance from the Secretary if such specifications were accepted, pursuant to applicable law, by the biomaterials supplier; and
(2) such failure to meet applicable contractual requirements or specifications was an actual and proximate cause of the harm to the claimant.