Burgess v. Johnson & Johnson Health Care Systems, Inc.
Filing
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MEMORANDUM OPINION AND ORDER: The defendant, Codman & Shurtleff, Inc. (Codman or defendant), filed a Motion for Summary Judgment, [Doc. 37]. The plaintiff has responded, [Doc. 46]. The matter is ripe for review. For the reasons that follow, the motion is DENIED. See order for details. Signed by District Judge J Ronnie Greer on 8/30/2016. (RLC, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
HELEN L. BURGESS,
Plaintiff,
v.
CODMAN & SHURTLEFF, INC.,
Defendant.
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No. 2:14-cv-371
MEMORANDUM OPINION AND ORDER
The defendant, Codman & Shurtleff, Inc. (“Codman” or defendant), filed a Motion for
Summary Judgment, [Doc. 37]. The plaintiff has responded, [Doc. 46]. The matter is ripe for
review. For the reasons that follow, the motion is DENIED.
I. FACTS
The facts are taken in the light most favorable to the plaintiff as the nonmoving party and
are as follows.1 Codman is a medical device, pharmaceutical and consumer package goods
manufacturer of medical supplies, including the device positioning unit and microcoil system at
issue in this litigation. In September of 2013, plaintiff, after suffering a stroke, was diagnosed
with a partially peripherally calcified aneurysm. On November 5, 2013, plaintiff underwent an
aneurysm coiling procedure performed by Dr. Samuel O. Massey, III, an interventional
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This Court had difficulty determining the disputed facts in that the parties failed to follow the Scheduling Order,
[Doc. 11], by filing separate statements of undisputed material facts. Due to the defendant’s failure, the plaintiff
then failed to respond in a separate document to each fact set forth by the defendant by either (1) agreeing that the
fact is undisputed, (2) agreeing that the fact is undisputed for purposes of ruling on the motion for summary
judgment only, or (3) demonstrating that the fact is disputed, which this Court requires. However, this failure is
excused. Nonetheless, because of the failure, it appears that many of the facts are not disputed. In addition, many
facts are taken verbatim from the Joint Proposed Final Pretrial Order, [Doc. 65].
radiologist, utilizing a Micrus® Microcoil Delivery System and Presidio 10 Cerecyte Microcoil
at the Johnson City Medical Center in Johnson City, Tennessee (the “Surgery”).
Dr. Massey has testified that during the procedure he became concerned about one of the
loops at the base of Ms. Burgess’s aneurysm and pulled the coil back slightly to readjust
positioning in order to obtain a more ideal position. However, as he pulled back for
repositioning, the coil suddenly became detached from the microcatheter resulting in
approximately one-third (1/3) of the coil being placed in the aneurysm and two-thirds (2/3) of the
coil remaining in the catheter. Dr. Massey further testified that after a physician places a coil
within an aneurysm, an electrical current is purposely generated that dissolves the fiber and
detaches the coil from the microcatheter into the aneurysm.
Pursuant to Dr. Massey’s testimony, no electrical current was generated during the
plaintiff’s procedure and the coil was prematurely detached at what appeared to be the
detachment zone, leaving the coil partly outside the aneurysm. Dr. Massey testified that he made
several attempts to snare the coil outside the aneurysm, including aspiration of the microcatheter
and the use of a lasso or snare over the back end of the microcatheter and the coil, together with
attempts to pull the whole device back. Dr. Massey testified that after multiple attempts to snare
the coil were unsuccessful he elected to stent the remaining portion of the coil against the wall of
the vessel in an effort to limit clot formation, utilizing five stents, and stopped the procedure.
Dr. Kenneth Smith, the plaintiff’s treating physician, reviewed the plaintiff’s medical
records and angiogram. He determined that the aneurysm is not coiled and that the procedure
was not successful because there is more than three millimeters of the aneurysm remaining,
which, according to Dr. Smith, is the industry standard. Dr. Smith opined that the plaintiff faces
two risks based on the failed procedure. First, the plaintiff has a continued risk of transient
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ischemic attacks, (“TIAs”). Since the failed coiling procedure, the plaintiff has suffered from
five TIAs (November 14, 2013; November 21, 2013; February 17, 2014; April 17, 2014; and
April 21, 2014). Second, if the aneurysm enlarges and bleeds, the plaintiff faces a risk of death.
Dr. Smith observed that blood continues to flow within the aneurysm due to the failed procedure.
Thus, it is still subject to pressure which is a contributor to why it ruptures. In addition, the
aneurysm’s size poses a risk that it could serve as a reservoir for clots to form. Dr. Smith
testified that had the coiling procedure been successful, these risks would have been avoided.
II. STANDARD OF REVIEW
Summary judgment is proper where the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In ruling on a motion for
summary judgment, the Court must view the facts contained in the record and all inferences that
can be drawn from those facts in the light most favorable to the non-moving party. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v.
Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence, judge the
credibility of witnesses, or determine the truth of any matter in dispute. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of
material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a
showing, the non-moving party must present some significant, probative evidence indicating the
necessity of a trial for resolving a material factual dispute. Id. at 322.
A mere scintilla of
evidence is not enough. Anderson, 477 U.S. at 252; McClain v. Ontario, Ltd., 244 F.3d 797, 800
(6th Cir. 2000). This Court’s role is limited to determining whether the case contains sufficient
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evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S.
at 248-49; Nat’l Satellite Sports, 253 F.3d at 907. If the non-moving party fails to make a
sufficient showing on an essential element of its case with respect to which it has the burden of
proof, the moving party is entitled to summary judgment.
Celotex, 477 U.S. at 323. If this
Court concludes that a fair-minded jury could not return a verdict in favor of the non-moving
party based on the evidence presented, it may enter a summary judgment. Anderson, 477 U.S. at
251-52; Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994).
The party opposing a Rule 56 motion may not simply rest on the mere allegations or
denials contained in the party’s pleadings. Anderson, 477 U.S. at 256. Instead, an opposing
party must affirmatively present competent evidence sufficient to establish a genuine issue of
material fact necessitating the trial of that issue. Id. Merely alleging that a factual dispute exists
cannot defeat a properly supported motion for summary judgment. Id. A genuine issue for trial
is not established by evidence that is merely colorable, or by factual disputes that are irrelevant
or unnecessary. Id. at 248-52.
III. ANALYSIS
Codman moves for summary judgment on three grounds. It asserts the plaintiff cannot
(1) “establish ‘general’ or ‘specific causation,’ which is dispositive of all causes of action,” (2)
“prove that Microcoil was defective in design or manufacture,” and (3) “show that Codman acted
recklessly in its manufacture, marketing and promotion of the Delivery System and Microcoil to
warrant punitive damages.” [Doc. 39, pgs. 1 and 2]. The Court will address each issue in turn,
albeit in a different order than presented.
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First, the plaintiff agrees that she cannot show any reckless conduct to support a punitive
damages claim. [Doc. 46, pg. 2]. Plaintiff asserts she never made a claim for punitive damages.
As such, the Court concludes punitive damages cannot be awarded in this case.
Second, the defendant claims that the plaintiff cannot prove the Microcoil was defective
in design or manufacture. Its argument in support of this assertion is that the plaintiff does not
have a qualified expert to testify to such. To be sure, plaintiff’s experts, Mr. Bruley and Dr.
Lucas, opine that the device is not defective. Bruley 39:12-19; Lucas 25:14-16. However, Dr.
Massey testifies that it is. [Doc. 46-1, Ex. A, ¶ 32 and Doc. 33-1, pgs.147-48]. Nonetheless, the
defendant argues that Dr. Massey is unqualified to offer this opinion. This Court has affirmed
the magistrate judge’s decision that Dr. Massey is qualified to offer such an opinion and that the
opinion is reliable; thus, it is admissible. Therefore, the conflicting, admissible testimony creates
a genuine issue of material fact. This issue is for the jury to decide.
Third, the defendant argues that the plaintiff cannot prove general or specific causation.
The only authority the defendant offers for the assertion that the plaintiff must prove both
general and specific causation are toxic tort cases or cases applying state law other than
Tennessee’s. This is not a toxic tort case. Thus, the Court will apply the standard Tennessee
products liability principles and law to the case at bar.
The Tennessee Supreme Court in Ray ex rel. Holman v. BIC Corp., 925 S.W.2d 527
(Tenn.1996), explained that both a consumer expectation test and a prudent manufacturer test are
provided for under the Tennessee Products Liability Act’s definition of “unreasonably
dangerous.” Id. at 531–32. The Tennessee Products Liability Act also provides that the term,
“defective condition,” means a condition of a product that renders it unsafe for normal or
2
The defendant argues that this affidavit contains inadmissible statements and should be stricken. This Court
disagrees. The key testimony, i.e. the opinion that the device is defective, has been ruled admissible in this Court’s
previous Order, [Doc. 63].
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anticipatable handling and consumption. Tenn. Code Ann. § 29–28–102. Whether the consumer
expectation test or the prudent manufacturer test is utilized, however, the Tennessee Supreme
Court has ruled that the burden remains on plaintiff in a products liability action to establish
injury as a result of a defective or unreasonably dangerous product. Ray ex rel. Holman v. BIC
Corp., 925 S.W.2d at 533; Goins v. Clorox Co., 926 F.2d at 561; see also Browder v. Pettigrew,
541 S.W.2d 402 (Tenn.1976); Ford Motor Company v. Lonon, 398 S.W.2d 240 (Tenn. 1966);
Olney v. Beaman Bottling Co., 418 S.W.2d 430 (Tenn. 1967); Restatement (2d) Torts § 402A.
In addition, the plaintiff must prove that the defect or fact that the product is
unreasonably dangerous proximately caused plaintiff’s claimed injuries. Goins v. Clorox Co.,
926 F.2d 559, 561 (6th Cir. 1991). Under Tennessee products liability law, it is sufficient to
establish causation if it is shown that the conduct of defendant proved a substantial factor in
causing the harm. Ricker v. Zinser Textilmaschinen GmbH, 506 F. Supp. 3 (E.D. Tenn. 1978),
aff’d sub nom. 633 F.2d 218 (6th Cir. 1980). The issue of proximate cause is for the jury’s
determination unless the facts and inferences establish beyond dispute that all reasonable men
would agree on the outcome. Frady v. Smith, 519 S.W.2d 584 (Tenn. 1974); Kroger Co. v. Giem,
387 S.W.2d 620 (Tenn. 1964); Wyatt v. Winnebago Industries, Inc., 566 S.W.2d 276 (Tenn. Ct.
App. 1977).
The defendant argues that the plaintiff cannot show that the defective device caused the
plaintiff’s injuries. It is true that there is no testimony that states the defective device caused the
plaintiff’s subsequent TIAs or caused her increased risk of the aneurysm rupturing and causing
death. However, Dr. Massey testified that because the device was defective he could not
complete the coiling procedure. [Doc. 46-1, Ex. A, ¶ 3 and Doc. 33-1, pgs.147-48]. Dr. Smith
testified that the failed coiling procedure caused the plaintiff’s injuries. Smith: 39:4-40:24; [Doc.
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33-2, pgs. 27 and 49]. Based on the doctors’ testimony, a reasonable jury could agree that the
defective device was a substantial factor in causing the plaintiff’s injuries. The jury must weigh
Drs. Massey and Smith’s testimonies with other testimony that the plaintiff was predisposed to
these injuries. In sum, this issue is a jury question.
IV. CONCLUSION
For the reasons stated above, the motion is DENIED.
ENTER:
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
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