Today we look at a common topic – sales representatives – in a slightly different light. We are all well-versed in the learned intermediary doctrine. More and more often, plaintiffs’ failure to warn claims in pharmaceutical and medical device cases are thwarted by knowledgeable physicians who apply their independent medical judgment in deciding whether a course of treatment is in the best interests of their patients. This is a good thing – and often relegates the role of the sales rep in a products case to the back burner.

Of course, when we think about sales reps we typically picture a rep standing in a doctor’s office with a sample case and some handouts trying to get a few minutes of a doctor’s time to laud our clients’ products. But there is another arena in which sales reps play a critical role – the operating room. A modern surgical suite can look something like a cross between a NASA command center (if they were still in business) and your local auto repair shop. Because of both the high tech nature of surgical equipment and the vast array of options available to surgeons, it is increasingly common for medical device manufacturers to have representatives attend surgeries. Often this is just to observe the use of the company’s product, but sometimes the sales rep can “assist” the medical team by making sure the right product is available, helping nurses locate the proper instruments, or calibrating a product before use. From our experience in the Bone Screw litigation, for instance, we know that sales reps often stand outside the sterile field and use laser pointers to help nurses pick out the size instrumentation the doctor asks for.