Dismissal of malpractice claim upheld because product claim could not have been successful
Shelley and John Bush sued the lawyer they had retained, Steven Goren, alleging all sorts of mismanagement of their claim. The malpractice action was dismissed and they appealed. One of their claims was that Goren failed to thoroughly investigate their potential medical product liability claim, but held on to the claim for so long that no one else could examine it before the statute of limitations ran.
The Court of Appeals rejected their argument because their underlying product claim was preempted by federal law that rendered the medical device/product manufacturer immune from liability. Under federal law, the manufacturer of the vascular closure device which the Bushs claimed to have been defective was protected from liability if it met FDA standards. Therefore, regardless of any alleged negligence in Goren's management of the claim, it had no potential for success and the Bushs suffered no harm from the failure to pursue it.