SWAIN v. JOHNSON & JOHNSON INC. et al

Filing 80

ORDER granting Dr. Touloukian's 46 Motion for Summary Judgment. Signed by Judge Richard L. Young on 12/10/2014. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

DEBRA SWAIN,

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Plaintiff,
vs.
COVIDIEN, INC.,
TYCO HEALTHCARE GROUP, LP, and
DR. CHRISTOPHER TOULOUKIAN,
Defendants.

1:12-cv-00107-RLY-DKL

ENTRY ON DEFENDANT TOULOUKIAN’S MOTION FOR
SUMMARY JUDGMENT
Plaintiff, Debra Swain, filed suit against Defendants, Covidien, Inc., Tyco
Healthcare Group, LP, and Dr. Christopher Touloukian, M.D., for damages sustained as a
result of a medical procedure. The case was removed from state court based upon
diversity jurisdiction pursuant to 28 U.S.C. § 1332. Dr. Touloukian now moves for
summary judgment on the claim asserted against him. For the reasons set forth below,
the motion for summary judgment is GRANTED.
I.

Background
Swain suffered from perforated sigmoid colon diverticulitis. On December 24,

2009, she underwent surgery to have part of her colon resected. Dr. Touloukian, Swain’s
surgeon, successfully completed the resection, but when he attempted to anastomose (i.e.

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connect the two resultant ends) the colon with a DST Series EEA 28mm Stapler (“the
stapler”), the surgery went terribly wrong.
The stapler used on Swain is no ordinary desk stapler. It consists of two principal
parts—the main stapling device and the anvil. In very simple terms, the anvil enters the
bowel from the abdominal cavity and is placed in the proximal end of the bowel. The
stapler is passed through the rectum to the stump of the sigmoid colon, at which point a
protruding part of the stapler punctures the end of the stump and then meets with the
anvil. With some finesse and the use of various sutures and clamps, the surgeon then
connects the anvil and stapler to bring the two ends of the colon together. Once the anvil
and stapler are engaged, the instrument is ready to fire, anastomosing the two ends of the
colon. After the stapler fires, it should release from the tissue upon two counterclockwise
motions, allowing the surgeon to safely slide the stapler out of the rectum.
Dr. Touloukian reported that he had successfully engaged and fired the stapler, but
that the stapler failed to release from the tissue. For approximately 20 or 30 minutes, Dr.
Touloukian employed various maneuvers to release the stapler. During this process,
Swain’s rectal stump tore, resulting in a significant amount of feces spilling into her
abdomen. Due to the tear and fecal contamination, Dr. Touloukian decided to abort the
anastomosis and instead perform a colostomy.
Swain argues that Dr. Touloukian failed to exercise the “applicable standards of
care” while treating her and thus caused her significant harm. A unanimous Medical
Review Panel found otherwise, stating that “[t]he evidence does not support the
conclusion that the Defendant failed to meet the appropriate standard of care as charged
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in the complaint and the conduct complained of was not a factor of the resultant
damages.” (Filing No. 48-1).
I.

Standard
Under the Erie doctrine, federal courts exercising diversity jurisdiction apply state

substantive law and federal procedural law. Gasperini v. Ctr. for Humanities, Inc., 518
U.S. 415, 428, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996). Therefore, the court applies
the federal standard for summary judgment and Indiana substantive law with respect to
the medical malpractice claim. 1 Id.
Summary judgment is appropriate when a movant shows that no genuine dispute
as to any material fact exists and the movant is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). The burden rests with the movant to demonstrate an absence of
evidence to support the nonmoving party’s case. Higgins v. Koch Development Corp.,
997 F. Supp. 2d 924, 927 (S.D. Ind. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 313,
325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). Once the movant meets this burden, the
responsibility shifts to the non-movant to “go beyond the pleadings” and point to
evidence that establishes the existence of a genuine dispute of material fact. Id. at 928.
The court construes the evidence and all inferences reasonably drawn therefrom in the
light most favorable to the nonmoving party. Washington v. Haupert, 481 F.3d 543, 547

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Dr. Touloukian, through counsel, claims to bring this motion pursuant to Trial
Rule 56(C) of the Indiana Rules of Trial Procedure. (Filing No. 46). The court considers
this an oversight and will presume that the Defendant understands that a motion for
summary judgment in this court must be filed pursuant to Federal Rule of Civil Procedure
56.
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(7th Cir. 2007) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986)).
II.

Analysis
In a case such as this, where the doctor charged with malpractice receives a

certified Opinion of a Medical Review Panel finding that the evidence does not support
the conclusion that the physician failed to exercise the appropriate standard of care, the
plaintiff must generally present expert testimony to demonstrate the existence of a
genuine issue of fact. 2 Ziobron v. Squires, 907 N.E.2d 118, 122 (Ind. Ct. App. 2008); see
also Syfu v. Quinn, 826 N.E.2d 699, 704 (Ind. Ct. App. 2005) (stating that a unanimous
opinion of a medical review panel finding no breach of the applicable standard of care is
generally sufficient to negate the existence of a genuine issue of fact). In support of the
motion, Dr. Touloukian argues that Swain’s failure to present expert testimony on the
applicable standard of care, breach of that standard, or proximate cause entitles him to
summary judgment. (Filing No. 47 at 2). Swain counters that she need not present
expert testimony because her case falls within the res ipsa loquitur exception. (Filing
No. 64 at 1–3).
A medical malpractice plaintiff must ordinarily “present expert opinion that a
defendant health care provider’s conduct fell below the applicable standard of care,”

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Although this rule sounds in procedure, because it is not inconsistent with Rule 56
and is specific to Indiana’s common law of medical malpractice, it governs a tort case
that is in federal court via diversity jurisdiction. See Gipson v. United States, 631 F.3d
448, 451 (7th Cir. 2011) (finding that Indiana law should apply in a medical malpractice
case where the plaintiff sued under the Federal Tort Claims Act because the case reached
federal court solely because of the defendant’s identity).
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unless res ipsa loquitur applies. Chi Yun Ho v. Frye, 880 N.E.2d 1192, 1201 (Ind. 2008).
This doctrine permits the trier of fact to infer negligence where:
(1) the injuring instrumentality is shown to be under the management or
exclusive control of the defendant or his servants, and (2) the accident is
such as in the ordinary course of things does not happen if those who have
management of the injuring instrumentality use proper care.
Syfu, 826 N.E.2d at 704 (citation omitted). Res ipsa loquitur applies when a jury does not
require extensive technical or scientific input to understand that the medical provider’s
conduct failed to meet the applicable standard of care. Id. at 705.
A case illustrating this point is Cleary v. Manning, where the plaintiff suffered
burn injuries during surgery when a spark from an electrocautery unit ignited the oxygen
flowing to his nose. 884 N.E.2d 335, 336–37 (Ind. Ct. App. 2008). The Court held that
the plaintiff did not need to present expert testimony to establish a genuine issue of fact—
despite a review panel’s opinion that the surgeon had met the standard of care—because
the careless use of such a device near an oxygen tube is not beyond the understanding of
a lay person. Id. at 340; see, e.g., Wright v. Carter, 622 N.E.2d 170, 171–72 (Ind. 1993)
(agreeing that leaving surgical wire in a patient’s breast gives rise to an inference of
negligence); Stumph v. Foster, 524 N.E.2d 812, 816 (Ind. Ct. App. 1988) (holding that
expert testimony was not required to survive summary judgment because a lay person
could infer that a careful chiropractor would not have broken the plaintiff’s rib while
manipulating her spine).
Swain argues that a jury could rely upon common knowledge to infer negligence
because Dr. Touloukian had exclusive control of the stapler and this type of accident
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would not ordinarily occur had Dr. Touloukian used proper care. (Filing No. 64 at 1–2).
The court disagrees. Swain relies on Dr. Touloukian’s deposition testimony, which is the
entirety of her designated evidence. Dr. Touloukian testified that he did not know for
certain if the stapler misfired or malfunctioned and that “[t]here’s no evidence that that’s
the case.” (Id. at 2). He further testified that he had never before heard of such a device
misfiring. (Id.).
From this testimony, Swain seems to advance a false deduction in that, because
Dr. Touloukian has no evidence or knowledge of such an instrument malfunctioning, a
jury need only use common knowledge to assess the issue of negligence. However, an
inquiry into whether Dr. Touloukian operated the stapler with proper care demands more
of a jury than mere common knowledge. Compare Syfu, 826 N.E.2d at 705 (finding that
the act of and medical reasons for elevating a patient’s head during prolonged surgery to
alleviate facial pressure are matters not within the realm of “common knowledge”), and
Ziobron, 907 N.E.2d at 126 (concluding that whether a surgeon failed to exercise proper
care while conducting an internal bladder sling procedure required expert testimony),
with Gold v. Ishak, 720 N.E.2d 1175, 1183–84 (Ind. Ct. App. 1999) (noting that the
common knowledge exception applied when surgeons used a spark-generating instrument
near the patient’s oxygen tube), and Burke v. Capello, 520 N.E.2d 439, 441 (Ind. 1988)
(holding that no expert testimony was needed to survive summary judgment when the
surgeon failed to remove pieces of cement from the wound following a hip replacement),
overruled on other grounds by, Vergara v. Doan, 593 N.E.2d 185 (Ind. 1992).

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As both Swain and Dr. Touloukian contend, the EEA 28mm stapler—a
sophisticated medical instrument—failed to properly release from Swain’s tissue. (See
Filing No. 49 at 2–5; Filing No. 63-1 at 13). While Dr. Touloukian maneuvered the
stapler for approximately 20 to 30 minutes, the tissue eventually tore. (Filing No. 63-1 at
13–14). Swain only circularly argues that this type of accident would not occur absent a
failure to exercise proper care. (Filing No. 64 at 3). She makes no showing, however,
that Dr. Touloukian’s “conduct is so obviously substandard that one need not possess
medical expertise in order to recognize the breach of the applicable standard of care.”
Ziobron, 907 N.E.2d at 123. Because the facts do not reflect the type of conduct that falls
within res ipsa loquitur, Swain cannot circumvent the requirement that a medical
malpractice plaintiff present expert testimony. Therefore, Swain’s failure to demonstrate
the existence of a genuine issue of fact through expert testimony entitles Dr. Touloukian
to summary judgment.
II.

Conclusion
For the reasons set forth above, the court GRANTS Dr. Touloukian’s Motion for

Summary Judgment (Filing No. 46).

SO ORDERED this 10th day of December 2014.

_________________________________
RICHARD L. YOUNG, CHIEF JUDGE
United States District Court
Southern District of Indiana

Distributed Electronically to Registered Counsel of Record.
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