Canary v. Medtronic, Inc.
Filing
49
OPINION and ORDER Denying 44 MOTION for Summary Judgment - Signed by District Judge Nancy G. Edmunds. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JANET CANARY,
Plaintiff,
Case No. 16-11742
v.
Honorable Nancy G. Edmunds
MEDTRONIC, INC.,
Defendant.
________________________________/
OPINION AND ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [44]
Plaintiff Janet Canary brought this suit against Defendant Medtronic, Inc.,
asserting product liability and fraud claims. Her claims stem from a severe allergic
reaction allegedly triggered by the implantation of a spinal cord stimulator manufactured
by Defendant. This Court granted Defendant’s motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) in part and denied it in part, dismissing Plaintiff’s
product liability claims but allowing her fraud claim to move forward. (See Dkt. #24.)
The matter is now before the Court on Defendant’s motion for summary judgment on
the remaining fraud claim. (Dkt. #44.) The Court heard oral arguments on the motion
on November 7, 2018. For the reasons discussed below, the Court DENIES
Defendant’s motion.
I.
Background
A.
Plaintiff’s Allergic Reaction and Treatment
Plaintiff was involved in a motor vehicle accident and sustained serious injuries to
her spine in February of 2008. (Dkt. #44-2, Pg ID 1356.) Over the next few years,
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Plaintiff underwent a number of surgeries to address these injuries. (Id. at Pg ID 1373.)
Following her surgeries, Plaintiff’s physicians recommended that she consider the
implantation of the Medtronic PrimeAdvanced spinal cord stimulator to address her
chronic neck and back pain. (Id.) Defendant designs, manufactures, markets, and sells
this device. (See Dkt. #47-2.)
Prior to having the stimulator implanted, Plaintiff met with her physicians and with
Ms. Violet Peplowski, a specialist representing Defendant, on three occasions to
discuss the possibility of implanting the device.1 (Dkt. #44-2, Pg ID 1385.) Plaintiff
alleges that during each of these meetings, she mentioned her latex and rubber
allergies. (Id.) On each occasion, Ms. Peplowski allegedly assured her that latex and
rubber allergies did not prevent implantation of the stimulator and that Defendant had
not had a patient have an allergic reaction to any of the components of the spinal cord
stimulator. (Id.) Ms. Peplowski testified during her deposition that she was aware of the
potential for an allergic reaction to a spinal cord stimulator and would never tell a patient
that the stimulator was safe and would not cause a reaction. (Dkt. #44-3, Pg ID 1456,
1458.)
On May 16, 2013, Plaintiff had the permanent spinal cord stimulator implanted.
(Id. at Pg ID 1384.) A few days later, on May 22, 2013, Plaintiff had an appointment
with Dr. Andres Munk during which her spinal cord stimulator was activated. (Id. at Pg
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Plaintiff also underwent a trial implant prior to having the permanent stimulator
implanted, but she alleges that she did not have an allergic reaction to that device
because it was pulled out of her back on the same day of the implant. (Dkt. #44-2, Pg
ID 1379.)
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ID 1395.) Shortly thereafter, Plaintiff allegedly developed hives over her entire body.
(Id. at Pg ID 1396.)
On May 26, 2013, Plaintiff went to the Henry Ford Clinic near her home, where
she was treated by Dr. Sujatha Prasad. (Dkt. #44-14, Pg ID 1910.) Dr. Prasad noted
that Plaintiff presented with an allergic reaction, skin rash, and hives. (Id. at Pg ID
1911.) Plaintiff also reported having trouble breathing and swallowing. (Id. at Pg ID
1912.) She was prescribed medications for her symptoms. (Id. at Pg ID 1915.)
Plaintiff called Ms. Peplowski on or around May 26, 2013, and informed her that
she was having an allergic reaction to the spinal cord stimulator, including symptoms of
a fever, vomiting, difficulty breathing, swelling of her hands and face, and that she was
covered in hives. (Dkt. #44-2, Pg ID 1394.) Plaintiff testified that Ms. Peplowski
responded by stating that Defendant had another patient who had an allergic reaction to
the spinal cord stimulator and was now on medication. (Id.)
On May 28, 2013, Plaintiff was admitted to the intensive care unit at the
McLaren Medical Center in Mount Clemens, Michigan. (Dkt. #44-8, Pg ID 1693.) She
was treated there by Dr. Dheeraj Thammineni and eventually discharged on May 31,
2013. (Id.) Dr. Thammineni testified that Plaintiff complained of abdominal pain and
inflammation of the bowel along with the hives. (Id. at 1691.)
On June 5, 2013, Plaintiff followed up with her primary care physician, Dr. Paul
Paonessa. (Dkt. #44-10, Pg ID 1764.) Dr. Paonessa noted that Plaintiff had hives on
the trunk, and suggested she speak to Dr. Munk to discuss the possibility of having the
stimulator removed. (Id. at 1765.) On June 13, 2013, Plaintiff underwent a procedure
to remove the spinal cord stimulator. (Dkt. #44-10, Pg ID 1775-76.) On June 14, 2013,
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the day after removal of the stimulator, Plaintiff had another follow-up appointment with
Dr. Paonessa. (Id. at Pg ID 1775.) Dr. Paonessa did not indicate in his notes that
Plaintiff had hives. (Id. at Pg ID 1776.)
On June 26, 2013, Plaintiff had a surgical follow-up appointment with Dr. Munk.
(Dkt. #44-5, Pg ID 1536.) Dr. Munk’s noted stated that “[u]nfortunately she cannot have
another spinal cord stimulator due to the fact that she has the latex and rubber allergy.”
(Id. at Pg ID 1539.) During his deposition, he testified that his note was a reflection of
the patient’s wishes. (Id.)
Later, in September of 2014, Plaintiff saw an allergist, Dr. Pamela Georgeson, for
her gastrointestinal issues and allergies. (Dkt. #44-11, Pg ID 1809.)
B.
The Parties’ Expert Testimony
Plaintiff has not retained any expert witnesses, but instead indicates that she
intends to rely on the testimony of her treating physicians, Drs. Thammineni, Patel,
Paonessa, Georgeson, Kerr and Prasad. (See Dkt. #44-6.) Relevant to the issue of
causation, Dr. Prasad was asked during his deposition, “you stated previously in your
testimony that the spinal cord stimulator could be a potential cause of the allergic
reaction, but it’s something you can’t decide whether it was or was not?;” he responded
“yes.” (Dkt. #44-14, Pg ID 1921.)
Dr. Thammineni, the internal medicine doctor who treated Plaintiff when she was
admitted to the intensive care unit on May 28, 2013, explained during his deposition that
while he stated that Plaintiff had “contact dermatitis secondary to spinal cord stimulator”
in his notes, he recommended that she get allergy and skin testing to ascertain exactly
what caused the reaction. (Dkt. #44-8, Pg ID 1694.) When Dr. Thammineni was asked
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if the spinal cord stimulator was more of a possibility than other causes, he responded
with a “yes.” (Id. at Pg ID 1704.) And when asked “[c]an you say to a reasonable
degree of medical certainty that the hives were caused by the implantation of the spinal
cord stimulator on May 16th and not some other source,” he stated that the stimulator
was “one of the top possibilities.” (Id. at Pg ID 1705.)
Dr. Kerr, Plaintiff’s dermatologist, opined during her deposition that
[t]here was something around the time of the surgery that triggered a hivelike reaction. The device was used, but other things were used at the time
of the procedure, such as prep and – however, when the device was
removed, her hives and itching in that area went away, so there’s an
association with that. Unfortunately, there’s no test for [these types of]
reactions in this situation.
(Dkt. # 44-12, Pg ID 1854.) Dr. Kerr testified that her focus was only on Plaintiff’s
skin and not on the other symptoms Plaintiff alleges she had after the
implantation of the device. (Id. at Pg ID 1856.)
Dr. Pamela Georgeson, an allergist who treated Plaintiff in September of 2014,
testified, in part, as follows about the cause of Plaintiff’s allergic reaction:
Q: You stated it was plausible that she had an allergic reaction to the
device; is that correct?
A: I think everything is plausible, but, yes.
Q: Okay. The fact that she reported she had hives after the device, and
her hives stopped after the device was removed, would that further support
the conclusion that it was plausible that the device caused a reaction?
[Defense counsel]: Object to the form.
The witness: I would – yes.
[Plaintiff’s counsel]: And earlier you testified regarding the correlation and
the difference between general hives versus local hives.
A: Yes.
Q: Do you believe the stimulator caused the local hives she reported to
you?
A: Yes.
[Defense counsel]: Object to the form.
[Plaintiff’s counsel]: That was a yes?
A: Yes.
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(Dkt. #44-11, Pg ID 1816-17.)
Defendant has retained three expert witnesses who have filed expert reports.
(See Dkt. #44-7.) Two of these experts opined that the stimulator was to “a reasonable
degree of medical certainty” not the cause of Plaintiff’s medical issues and that there
are many potential alternative causes for the reaction, such as food, medications, or
surgical prep. (Id. at Pg ID 1613-14, 1642-44.)
II.
Summary Judgment Standard
It is well established that summary judgment under Federal Rule of Civil
Procedure 56 is proper when “‘the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.’” United
States S.E.C. v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013)
(quoting Fed. R. Civ. P. 56(a)). When reviewing the record, “‘the court must view the
evidence in the light most favorable to the non-moving party and draw all reasonable
inferences in its favor.’” Id. at 327 (quoting Tysinger v. Police Dep’t of Zanesville, 463
F.3d 569, 572 (6th Cir. 2006)). Furthermore, the “‘substantive law will identify which
facts are material,’ and ‘summary judgment will not lie if the dispute about a material
fact is genuine, that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.’” Id. at 327 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)).
When considering the material facts in the record, a court must bear in mind that
“[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could reasonably find for the
plaintiff.” Anderson, 477 U.S. at 252.
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III.
Analysis
Plaintiff’s fraud claim is based on the theory that Defendant’s representative
made misrepresentations to Plaintiff about the safety of the spinal cord stimulator for
someone with known latex and rubber allergies, she relied on those misrepresentations
in making a decision to have the stimulator implanted, and she suffered a severe
allergic reaction as a result. To establish a claim of fraud under Michigan law, a plaintiff
must prove the following elements:
(1) the defendant made a material representation; (2) the representation
was false; (3) when the defendant made the representation, the defendant
knew that it was false, or made it recklessly, without knowledge of its truth
as a positive assertion; (4) the defendant made the representation with the
intention that the plaintiff would act upon it; (5) the plaintiff acted in reliance
upon it; and (6) the plaintiff suffered damage.
M&D, Inc. v. McConkey, 585 N.W.2d 33, 36 (Mich. Ct. App. 1998) (citations omitted).
Plaintiff must also “prove that the fraud committed actually and proximately caused the
damages suffered.” Kheder Homes at Charleston Park v. Charleston Park, No. 307207,
2014 Mich. App. LEXIS 3, at *7 (Mich. Ct. App. Jan. 2, 2014) (citations omitted). While
“the plaintiff must present substantial evidence from which a jury may conclude that
more likely than not, but for the defendant’s conduct, the plaintiff’s injuries would not
have occurred,” “plaintiff is not required to produce evidence that positively eliminates
every other potential cause. Rather, the plaintiff’s evidence is sufficient if it ‘establishes
a logical sequence of cause and effect, notwithstanding the existence of other plausible
theories, although other plausible theories may also have evidentiary support.’” Skinner
v. Square D Co., 516 N.W.2d 475, 478-80 (Mich. 1994) (quoting Mulholland v. DEC Int’l
Corp., 443 N.W.2d 340, 349 (Mich. 1989)).
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Defendant argues that, under Michigan law, expert testimony is required to
establish causation and therefore Plaintiff cannot satisfy her burden of proof with
regards to causation because no expert has opined that within a reasonable degree of
medical certainty the spinal cord stimulator caused Plaintiff’s alleged allergic reaction.
Plaintiff responds by arguing that expert testimony is not always required to establish
causation and, even if it were required, she has presented sufficient evidence and
expert testimony to create an issue of material fact regarding causation.
Defendant cites to a number of cases in support of its argument that expert
testimony is required to establish causation in this case. Several of those cases,
however, are medical malpractice cases in which the expert testimony was required to
establish the applicable standard of care and demonstrate that the professional
breached that standard. See Elher v. Misra, 878 N.W.2d 790, 791 (Mich. 2016); Bryant
v. Oakpointe Villa Nursing Ctr., Inc., 684 N.W.2d 864, 867 (Mich. 2004).2 And even in
the context of negligence claims brought against professionals, expert testimony is not
always required. The need for expert testimony depends on “whether the alleged acts
of negligence raise issues that are within the common knowledge and experience of the
jury or, alternatively, raise questions involving medical judgment.” Bryant, 684 N.W.2d
at 873-76 (finding that expert testimony was required to establish the standard of care
2
Defendant also cites to the case of Amorello v. Monsanto Corp., 463 N.W.2d
487 (Mich. Ct. App. 1990). In that case, however, the plaintiffs had alleged that they
suffered medical problems as a result of exposure to a chemical that leaked from an
electrical transformer in their backyard. Id. at 488-89. There, not only was the evidence
insufficient to establish the causal link between the plaintiffs’ health problems and the
alleged exposure but it also did not demonstrate that the chemical in the soil came from
the transformer in the first place. Id. at 490. Here, there is no dispute that the Plaintiff
had the stimulator implanted and that it could have led to the allergic reaction.
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for some of the plaintiff’s claims but not for others) (citation and quotations omitted); see
also Elher, 878 N.W.2d at 796 (holding that expert testimony was required to prove the
applicable standard of care and a breach of that standard in part due to the belief held
by some professionals that the alleged conduct did not necessarily constitute a breach
of the standard of care).
Plaintiff responds by arguing that expert testimony is not always required to
establish causation and points to the case of Genna v. Jackson, 781 N.W.2d 124, 12728 (Mich. Ct. App. 2009), for that proposition. In Genna, the plaintiffs alleged that
defendant’s negligence led to mold in her condominium which caused plaintiffs to
become ill. The defendant had urged the court to find that direct expert testimony was
required to establish causation, not inferences. Id. at 129. However, the court declined
to do so, reasoning that “[t]his is not a complicated case: the children were sick, the
children were removed from the home, the mold was discovered, and the children
recovered.” Id. at 130. The court also noted that there was “ample circumstantial
evidence” that would facilitate an inference of causation. Id. That circumstantial
evidence included an expert testifying that mold is toxic and can cause toxic reactions in
people. Id. The plaintiff’s allergy doctor had also concluded that the mold exposure
was a “possible contributing factor” to the symptoms. Id.
The court in Genna relied on the case of Gass v. Marriott Hotel Servs., Inc., 558
F.3d 419, 425 (6th Cir. 2009). In Gass, the plaintiffs alleged that they were injured
when defendants negligently sprayed pesticides into their hotel room. Id. at 421. The
Sixth Circuit, applying Michigan law, refused to require expert testimony to establish
causation, noting that the relevant burden of proof was a preponderance of the
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evidence and that plaintiffs may survive summary judgment if a reasonable jury could
find that it was more likely than not that defendants’ negligence caused their injuries. Id.
at 431. The court concluded that there was “ample evidence to demonstrate that at
least one of the chemicals [d]efendants routinely used to exterminate cockroaches . . .
[wa]s capable of causing their symptoms.” Id. at 432. The court also noted that it was
significant that plaintiffs had experienced symptoms within fifteen minutes of their
alleged exposure to the pesticides in their hotel room. Id.
The courts in both Genna and Gass distinguished the facts in those cases from
the facts in Kalamazoo River Study Grp. v. Rockwell Int’l Corp., 171 F.3d 1065 (6th Cir.
1999). In that environmental contamination case, the defendant had provided scientific
evidence showing that the chemical from the leak had never reached the nearby
waterway and therefore could not have caused the contamination along the shoreline.
Kalamazoo River, 171 F.3d at 1069. The Sixth Circuit therefore required admissible
expert testimony to rebut that scientific evidence. Id. at 1072. The court in Genna
noted that while defendant had set forth a virus as an alternate cause for the plaintiffs’
illness, unlike Kalamazoo River, it had not submitted any scientific evidence that the
mold “could not” have caused the plaintiffs’ injuries. Genna, 781 N.W.2d at 129.
Similarly, in Gass, the Sixth Circuit noted that, unlike Kalamazoo River, the defendant
had not introduced objectively verifiable scientific evidence proving an absence of
causation. Gass, 558 F.3d at 433.
While the case here may be somewhat more complex than Genna and Gass, the
analyses in those cases guides the Court’s analysis here. Plaintiff has similarly set forth
sufficient evidence supporting an inference that the spinal cord stimulator caused her
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allergic reaction. First, there is evidence of the sequence of events, namely that Plaintiff
broke out in hives after the stimulator was implanted and that those hives were gone
after the stimulator was removed. Moreover, several of her treating physicians have
provided expert testimony on the issue of causation. More specifically, Dr. Prasad
stated that the stimulator was a possible cause of the allergic reaction, see dkt. #44-14,
Pg ID 1914, Dr. Thammineni responded “yes” when asked if the stimulator was more of
a possibility than other causes for the allergic reaction, see dkt. #44-8, Pg ID 1704, and
Dr. Georgeson stated “yes” when asked if she felt that the stimulator caused Plaintiff’s
local hives, see dkt. #44-11, Pg ID 1817.3 And while Defendant has pointed to a
number of possible causes that could have led to Plaintiff’s injury, similar to Genna and
Gass, there is no evidence that the device could not have caused that injury.
Defendant’s own experts, who have opined that to a reasonable degree of certainty the
stimulator did not cause the allergic reaction, did not eliminate the possibility that it
could have done so. See, e.g., Dkt. #44-7, Pg ID 1613 (Defendant’s expert stating that
“[a]llergic reactions to the components of spinal cord stimulators are extremely rare” but
not eliminating their possibility). In sum, the Court finds that Plaintiff has set forth
sufficient evidence on causation to survive summary judgment.
3
In a footnote in its reply brief, Defendant argues that any expert testimony
provided by Dr. Thammineni and Dr. Georgeson regarding causation is unreliable and
therefore inadmissible under Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592
(1993). The general rule, however, is that “a treating physician may provide expert
testimony regarding a patient’s illness, the appropriate diagnosis for that illness, and the
cause of that illness.” Gass, 558 F.3d at 426; see also Fielden v. CSX Transp., Inc.,
482 F.3d 866, 870 (6th Cir. 2007) (reasoning that “doctors may need to determine the
cause of an injury in order to treat it. Determining causation may therefore be an
integral part of ‘treating’ a patient”). Because Dr. Thammineni and Dr. Georgeson were
Plaintiff’s treating physicians, they may provide expert testimony regarding her illness
and the cause of that illness.
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IV.
Conclusion
For the foregoing reasons, the Court DENIES Defendant’s motion for summary
judgment on Plaintiff’s fraud claim.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 13, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 13, 2018, by electronic and/or ordinary mail.
s/Lisa Bartlett
Case Manager
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