CHICAGO — An Illinois federal court is allowing a plaintiff to amend his lawsuit so that it includes the sales agent and the distributor who sold the defective hip implant.

The details are scarce but the U.S. District Court for the Northern District of Illinois ordered that adding the sales agent and distributor to the complaint was not fraudulent joinder because the company’s involvement went “far beyond the ordinary sales activities most typical of the distributorship relationship.”

The facts of the case involve a victim of the Emperion hip implant manufactured by Smith & Nephew. At the same time, Neubauer-Perkins, Inc. was Smith & Nephew’s exclusive sales and agent and distributor. Ignoring the legal issues at play – that resulted in the judge having to put forth an order allowing for Neubauer-Perkins to be put on the complaint as a defendant – there is now the greater possibility of sellers being held accountable for the defective hip implants they promote. In this case, not only are there significant federal laws governing the distributors of medical devices (such as Neubauer-Perkins), but the distributor was heavily involved in the installation of the implant itself. Not only was there a sales representative in the operating room when the device was implanted, but there was also one in the room when the broken implant was removed. This is a high level of involvement by the sales distributor.

The court allowing the plaintiff to amend their complaint and add Neubauer-Perkins offers a unique opportunity for victims of defective medical devices to hold accountable not just the doctors, but those who actively promote a product that does not work and/or hurts clients.

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