Fertik et al v. Stevenson, et al

Filing 310

Chief Judge Patti B. Saris: ORDER entered as to 257 MOTION for Reconsideration.(Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
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v.
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ABBOTT VASCULAR, INC.
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Defendants.
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WILLIAM FERTIK, Individually and
As Personal Representative and
Successor of the Estate of
GRETA FERTIK,
Plaintiff,

Civil Action
No. 12-10795-PBS

ORDER
September 26, 2016
Saris, U.S.D.J.
Abbott Vascular, Inc. (“Abbott”) has filed a motion for
reconsideration of the Court’s order denying its Motion for
Summary Judgment based on the “now fully developed post-Daubert
record.” At that hearing Abbott’s expert, Dr. Thomas Piemonte,
testified concerning an alternative explanation for the breakage
of the wire. He opined that the wire fractured because of
extraordinary stresses placed on the wire during use.
Specifically, according to Dr. Piemonte, the doctors advanced
39.5 centimeters of the wire outside of the needle into the left
atrium of the heart. The wire then prolapsed, came into contact
with the sharp needle, and sheared off during withdrawal.
After a review, I found no reference to this “shearing”
argument in the extensive summary judgment briefing. Dr.

Piemonte’s expert report attached to Abbott’s briefs does not
develop the basis for his opinion that the likely cause of the
break was shearing due to the handling of the product by the
physicians. Instead, the primary focus of Abbott’s arguments
during the summary judgment process was that the doctrine of res
ipsa loquitur does not apply because the use of the wire was off
label. It is too late to seek reconsideration based on expert
testimony at a Daubert hearing concerning likely mishandling of
the wire by the doctors. That theory could have been presented
during the summary judgment proceeding. The applicability of the
res ipsa loquitur argument is best resolved based on a full
trial record.

/s/ Patti B. Saris
Chief U.S. District Judge

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