In the old days (by which I mean five years ago), plaintiffs
rarely sued medical device sales representatives and distributors
in products liability lawsuits. When they were sued, it was almost
always to destroy diversity jurisdiction, thereby preventing
removal of the case to federal court. The question on
remand—whether the plaintiff could make a colorable claim
against the representative—was often decided on whether the
representative could be deemed a "seller" in the chain of
distribution under applicable state tort law. In some states, the
answer was clearly yes. In others, no. There was nothing
provocative about these fairly benign legal questions.
The golden age has ended. Nowadays, sales representatives are
being sued in products cases not just because they may be part of
the chain of distribution, but also because they promoted a product
for an off-label use (or prevented the doctor from using the
product for an off-label use) or because, under
