United States District Court, N.D. Indiana
AMANDA N. SMITH, Plaintiff,
COVIDIEN, LLC, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN, Judge
Plaintiff, Amanda N. Smith, underwent a surgical procedure in
which absorbable sutures were used. After an undissolved
suture was removed during a second surgery performed three
months later, she sued Covidien, LLC, the manufacturer of
such sutures. The Amended Complaint alleges that the
Plaintiff's injury, pain and suffering, and subsequent
remedial surgery, “were the direct and proximate result
of a faulty product designed and manufactured by
Covidien.” (First Am. Compl. ¶ 9, ECF No. 21.)
Defendant has moved for summary judgment [ECF No. 37],
arguing that the Plaintiff does not have evidence to
establish an essential element of her claim - specifically,
that there is insufficient evidence that the suture used
during the Plaintiff's surgery was manufactured by the
Defendant. The Defendant claims that even if such evidence
existed, there is no expert who can identify a defect with a
Covidien suture or who can opine that any such defect caused
the Plaintiff's damages. The Plaintiff counters that
genuine issues of material fact exist on the issue of product
identification. She relies on the theory of res ipsa
loquitur to argue that a jury should determine whether
the Defendant manufactured a product containing a defect.
Moreover, the Plaintiff argues that the testimony of her
treating physician creates genuine issues of material fact
whether this defect caused her injuries.
reasons stated in this Opinion and Order, the Court GRANTS
the Defendant's Motion for Summary Judgment.
December 28, 2013, David W. Stein, M.D., performed surgery on
the Plaintiff to remove a mass located on the right side of
her lower neck. One of the risks associated with the surgery
was unintended injury to the spinal accessory nerve. During
the procedure, Dr. Stein used a 3-0 Chromic Gut Surgical
Suture to close deep, subcutaneous tissue. Following the
procedure, the Plaintiff began to experience shoulder
weakness and drooping. On March 28, 2014, three months after her
initial surgery, the Plaintiff underwent a second procedure
to determine the cause of her shoulder symptoms. Dr. Susan
Mackinnon performed the procedure. She removed a portion of a
large absorbable suture that had “wrapped
circumferentially about half to two-thirds around the
nerve.” (MacKinnon Aff. ¶ 2, ECF No. 38-5.) When
Dr. Mackinnon removed the suture remnant, she did not send it
to pathology for analysis because it was not relevant to her
treatment of the Plaintiff at that time. Dr. Mackinnon does
not know who manufactured the suture.
Plaintiff has designated three non-retained experts for
purposes of establishing liability and damages: Dr. David
Stein, Dr. Susan Mackinnon, and Dr. Robert Thompson. Only Dr.
Stein's testimony is pertinent to the issues before the
Court on summary judgment. Dr. Stein is the only one of these
three witnesses who provided deposition testimony.
Additionally, the Plaintiff designated Dr. Stein's
affidavit as an exhibit in opposition to summary judgment.
The Plaintiff believes that Dr. Stein's testimony is
relevant to the product identification and causation issues.
other two doctors have provided two affidavits each. After
the Defendant obtained the first affidavits, the Defendant
filed a motion [ECF No. 40], asking the Court to enter an
Order striking the Plaintiff's Expert Witness Disclosures
related to product identification, product defect, and
causation because the disclosures were inconsistent with the
witness's affidavit testimony. Specifically, the
witnesses had not provided any testimony that the
Plaintiff's injuries were caused by the failure of a
Covidien suture to dissolve. The Plaintiff then obtained a
second affidavit from both Dr. Mackinnon and Dr. Thompson, in
which the doctors clarified that they had no opinion either
way as to whether the particular suture at issue in this case
was defective (as opposed to stating that they did not
believe the suture was defective). The Plaintiff also
clarified that she was withdrawing any reliance on these
experts as to the issue of product defect, electing to prove
the same through the doctrine of res ipsa loquitur
and the relevant product liability laws.
not necessary for the Court to strike the Plaintiff's
expert witness disclosures. The Court will only rely on the
actual, designated, testimony of the witnesses to resolve the
summary judgment motion, see Fed. R. Civ. P.
56(c)(1), not on what the Plaintiff indicated in her Rule 26
disclosures that she expected the witnesses would establish
through their testimony. Additionally, the Court will apply
the appropriate standards regarding burdens of proof and the
admissibility of testimony in the summary judgment context.
In this case, that testimony largely comes from Dr.
Stein's deposition and from his subsequent affidavit.
to Dr. Stein's affidavit, the surgery he performed on the
Plaintiff was relatively common, and there was nothing
unusual about her condition. (Stein Aff. ¶ 4, ECF No.
45-1.) The surgery proceeded without incident, and Dr. Stein
was “particularly careful to avoid contact with the
spinal accessary nerve with either the suture or surgical
instrument or any other foreign objects.” (Id.
¶ 5.) Dr. Stein maintains that he has “a clear
recollection of the fact” that “nothing came into
contact with her spinal accessary nerve” either during
the surgery or when he was closing the wound. (Id.
¶ 6.) He would not have been trying to
circumferentially wrap the suture around the spinal accessary
nerve. (Id.) Also, “[t]he absorbable suture
selected for this surgery was intentionally done so that the
suture would be absorbed and thereby not contact nor harm the
spinal accessary nerve.” (Id. ¶
Dr. Stein notes that the instructions accompanying the
package of Covidien 3-0 Chromic sutures “gave no reason
to expect the lack of total absorption nor the risk of
failure of total absorption causing damage to the spinal
auxiliary nerve” and that he has not known “for a
Chromic suture not to absorb within the 90-day period.”
(Id. ¶ 9.)
Summary Judgment Standard
judgment is warranted 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.”
Fed.R.Civ.P. 56(a). Summary judgment is the moment in
litigation where the nonmoving party is required to marshal
and present the court with evidence on which a reasonable
jury could rely to find in that party's favor.
Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d
651, 654 (7th Cir. 2010). A court should only deny a motion
for summary judgment when the nonmoving party presents
admissible evidence that creates a genuine issue of material
fact. Luster v. Ill. Dep't of Corrs., 652 F.3d
726, 731 (7th Cir. 2011) (first citing United States v.
5443 Suffield Terrace, 607 F.3d 504, 510 (7th Cir.
2010); then citing Swearnigen-El v. Cook Cnty.
Sheriff's Dep't, 602 F.3d 852, 859 (7th Cir.
2010)). A court's role in deciding a motion for summary
judgment “is not to sift through the evidence,
pondering the nuances and inconsistencies, and decide whom to
believe. [A] court has one task and one task only: to decide,
based on the evidence of record, whether there is any
material dispute of fact that requires a trial.”
Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920
(7th Cir. 1994).
facts are those that are outcome determinative under the
applicable law. Smith v. Severn, 129 F.3d 419, 427
(7th Cir. 1997). Although a bare contention that an issue of
material fact exists is insufficient to create a factual
dispute, a court must construe all facts in a light most
favorable to the nonmoving party, view all reasonable
inferences in that party's favor, see Bellaver v.
Quanex Corp., 200 F.3d 485, 491-92 (7th Cir. 2000), and
avoid “the temptation to decide which party's
version of the facts is more likely true, ” Payne
v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003).
Additionally, a court is not “obliged to research and
construct legal arguments for parties, especially when they
are represented by counsel.” Nelson v.
Napolitano, 657 F.3d 586, 590 (7th Cir. 2011).
Indiana Products Liability Act
parties acknowledge that the Plaintiff's claims are
governed by the Indiana Products Liability Act (IPLA).
See Piltch v. Ford Motor Co., 778 F.3d 628, 632 (7th
Cir. 2015) (“The IPLA governs all actions brought by a
user or consumer against a manufacturer for physical harm
caused by a product, regardless of the legal theory upon
which the action is brought.”) (citing Ind. Code §
34-20-1-1). A plaintiff suing under the IPLA must establish
that “(1) he or she was harmed by a product; (2) the
product was sold ‘in a defective condition unreasonably
dangerous to any user or consumer'; (3) the plaintiff was
a foreseeable user or consumer; (4) the defendant was in the
business of selling the product; and (5) the product reached
the consumer or user in the condition it was sold.”
Bourne v. Marty Gilman, Inc., 452 F.3d 632, 635 (7th
Cir. 2006) (quoting Ind. Code § 34-20-2-1). In
manufacturing defect cases, a plaintiff must also prove that
her injuries were proximately caused by the defect.
Piltch, 778 F.3d at 632 (citing Ford Motor Co.
v. Rushford, 868 N.E.2d 806, 810 (Ind. 2007)). When an
issue is not within the understanding of a lay person, expert
testimony is required. Id.
Defendant argues that it is entitled to judgment as a matter
of law because no healthcare provider or medical record
indicates that its sutures were used during the
Plaintiff's December 28, 2013, surgery. The Plaintiff
argues that the Defendant's contention is
“contradicted by the factual record in this
case.” (Pl.'s Mem. of Law 8, ECF No. 46.) Upon
review of the factual record, the Court agrees with the
Stein testified that he did not know who manufactured the
suture he used during the Plaintiff's surgery. (Stein
Dep. 40 (“Q. How do you know who manufactured the
suture used on Amanda Smith? A. I don't know. I don't
know if they document or track the product supply and serial
number or however they are coded.”); Id. at
42-43 (“Q. When you were working on Ms. Smith, did you
understand what company manufactured that chromic suture? A.
No.”).) In his subsequent affidavit, Dr. Stein
indicated that he intentionally selected an absorbable
suture, and noted that the instructions that accompany
Covidien 3-0 Chromic sutures, a copy of which had been
provided to the Plaintiff's lawyer, would give him no
reason to expect the lack of total absorption. However,
nowhere in his affidavit or during his deposition testimony,
did Dr. Stein actually state that he was aware that Covidien
manufactured the suture that he used during the
Plaintiff's surgery. Nor does he ...