Summary
granting summary judgment in a case involving medical sutures
Summary of this case from Brown v. StoresOpinion
C.A. No. 02C-01-030 CLS.
Submitted: November 19, 2003.
Decided December 9, 2003. Revised: December 16, 2003.
On Defendants' Motion for Summary Judgment. GRANTED.
Thomas C. Crumpler, Esquire, Jacobs Crumplar, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Frederick L. Cottrell, III, Esquire, and David A. Felice, Esquire, Richards Layton Finger, Wilmington, Delaware; Charles Preuss, Esquire, and Tracie M Caponigro, Esquire, Drinker Biddle Reath, LLP, San Francisco, California, Attorneys for Defendants.
REVISED MEMORANDUM OPINION
I. INTRODUCTION
The court hereby VACATES the Memorandum Opinion dated December 9, 2003 in this case.
Defendants Ethicon, Inc. and Johnson Johnson ("Ethicon") have filed a Motion for Summary Judgment. Upon consideration of the evidence presented at oral argument and a review of Ethicon's motion and plaintiffs' response, this court concludes Ethicon's motion should be GRANTED.
II. BACKGROUND
Plaintiff Edward Brink underwent elective surgery on January 7, 2000 for a pre-cancerous condition of his lower esophagus. James Spellman, M.D., the operating surgeon, used Prolene® sutures manufactured by defendant Ethicon to close the abdominal incision. Five days post-operatively, Edward Brink's suture line opened up, requiring emergency surgery to resuture the incision. Plaintiffs allege that the Prolene® suture material used initially was defective.
Extensive discovery has already taken place. During his deposition, Dr. Spellman stated that, during the repair surgery, he did not see any fragments of the suture material except the two end knots. Ethicon produced results of the quality control testing of the batch of suture material in question which found no defects. Defendants also noted no other adverse results were reported to them concerning this batch of suture material. Ethicon also produced documents provided to doctors concerning warnings about avoiding knot slippage using the Prolene® suture material and consequences that would occur if improper knotting techniques were used. Oral argument on the motion was held November 19, 2003.
III. STANDARD OF REVIEW
The court will grant summary judgment only if there are no genuine issues of material fact "and the moving party must show he is entitled to judgment as a matter of law." In determining whether there is a genuine issue of material fact, the evidence must be viewed in the light most favorable to the non-moving party. Summary judgment, therefore, is appropriate only if, after viewing the evidence in the light most favorable to the non-moving party, the court finds no genuine issue of material fact.
Deakyne v. Selective Insurance Co., 728 A.2d 569, 570 (Del.Super. 1997) (internal citation omitted).
Moore v. Sizemore, 405 A.2d 679 (Del. 1979.
Guy v. Judicial Nominating Com'n., 659 A.2d 777, 780 (Del.Super. 1995); Figgs v. Bellevue Holding Co., 652 A.2d 1084, 1087 (Del.Super. 1994).
IV. DISCUSSION
Delaware law is well-established that a plaintiff in a products liability case must show a defect in the product and that the defect was the proximate cause of the injury. While it is true that plaintiffs need not prove the specific nature of the defect in order to recover, it is clear "some evidence of the existence of a defect at the time of delivery is an essential element of a cause of action." The court in Towe v. Justice Brothers, Inc. found "the trier of fact may decide that an unusual failure of mechanical origin is evidence of a defective condition at time of assembly without further proof of the specific defect in design or assembly."
Reybold Group, Inc. v. Chemprobe Technologies, Inc., 721 A.2d 1267, 1269 (Del.Super. 1998); DiIenno v. Libbey Glass Div., Owens-Illinois, Inc., 668 F. Supp. 373, 377 (D. Del. 1987).
Towe v. Justice Bros., Inc., 290 A.2d 657, 658 (Del.Super. 1972); see also Reybold, 721 A.2d at 1269.
290 A.2d 657, 658 (Del.Super. 1972) (internal citation omitted).
Plaintiffs in their opposition to defendants' Motion to Dismiss rely heavily on the reasoning in Towe as well as cases in other jurisdictions that find proper use of a product together with a malfunction may be sufficient evidence to support a finding of a defective product. Plaintiffs argue there is no explanation other than a defective product to support the acknowledged failure of Edward Brink's initial suture.
MacDougall v. Ford Motor Co., 257 A.2d 676, 680 (Pa.Super. 1969); A.A.A. Exteriors, Inc. v. Don Mahurin Chevrolet Oldsmobile, Inc., 429 N.E.2d 975, 978 (Ind.App. 1981); Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 444-45 (Tex. 1989).
Defendants counter there is no evidence to support a finding of a defect in the suture material. In fact, defendants note they have provided an explanation of the suture failure related to improper knot formation that is compatible with the observations of Dr. Spellman when the repair surgery was performed.
This court rejects the reasoning of the court in Towe to the extent that it would allow a product liability claim to proceed absent some indication that a defect in the product was the only possible explanation for the failure. This court agrees with the court's holding in Reybold that "[f]or circumstantial evidence to substantiate a prima facie case that there was a breach of the implied warranty of merchantability, `it must tend to negate other reasonable causes of the injury sustained or there must be expert opinion that the product was defective.'" In the present case, Ethicon has presented a reasonable explanation (of knot slippage) for the presence of knots at the ends of the suture line, yet the suture line failed. Plaintiffs have not produced an expert to testify that the suture material was defective. Based on discovery already conducted, the court concludes that plaintiffs cannot, under any circumstances, do so.
Reybold, 721 A.2d at 1270 (internal citation omitted, emphasis added); see also Altronics of Bethlehem, Inc. v. Repco, Inc., 957 F.2d 1102, 1105 (3d Cir. 1992) (holding plaintiffs were required to show not only malfunction but also negate abnormal use and other causes).
The court concludes that allowing the mere fact of closure failure to support the conclusion that the suture material must have been defective would relieve plaintiffs of the burden of establishing an essential element of their claim. To hold otherwise would allow a plaintiff to maintain a cause of action using the existence of any harm to replace a finding of culpability on the part of a defendant.
The court finds the doctrine of res ipsa loquitor inappropriate in this case. There is no evidence the suture material was defective when it was under the control of defendants.
The court further finds that plaintiffs have already been provided with extensive discovery in this case. Plaintiffs have deposed Ethicon's corporate quality control expert who testified to the quality control procedures utilized by Ethicon. Ethicon has also provided the quality control report on the batch of suture material in question. Internal Ethicon records do not show any other reported incidents related to this batch of suture material. The court finds that allowing plaintiffs any more discovery regarding the post-incident investigation or the plant's manufacturing process would not lead to any relevant information concerning a defect in the suture material at issue. The court notes that no evidence of a defect in the suture material has been found and finds there are no probable circumstances under which plaintiffs can establish the existence of a defect in the suture material used in Edward Brink's initial surgery.
V. CONCLUSION
The court hereby VACATES the Memorandum Opinion dated December 9, 2003 in this case. For the above reasons, Ethicon's Motion for Summary Judgment is GRANTED.