Lee v. Baxter Healthcare Corp.

• Decision Date: 23 June 1989
• Docket Number: Civ. A. No. R-88-1411.
• Citation: 721 F. Supp. 89
• Parties: Linda LEE, Plaintiff, v. BAXTER HEALTHCARE CORP., Defendant.
• Court: U.S. District Court — District of Maryland

721 F. Supp. 89

Linda LEE, Plaintiff, v. BAXTER HEALTHCARE CORP., Defendant.

Civ. A. No. R-88-1411.

United States District Court, D. Maryland.

June 23, 1989.

Charles E. Wilson, Jr., McCarthy, Wilson & Ethridge, Rockville, Md., for plaintiff.

Bruce R. Parker, Goodell, DeVries, Leech & Gray, Baltimore, Md., for defendant.

MEMORANDUM AND ORDER

RAMSEY, District Judge.

Plaintiff Linda Lee brought this personal injury action against Baxter Healthcare Corporation ("Baxter") and three other named defendants on February 26, 1988. Since that date, plaintiff has filed an amended and a second amended complaint. Plaintiff has voluntarily dismissed defendants Surgitek, Inc., American Hospital Supply, and Mentor Corporation. In her second amended complaint, now pending against Baxter only, plaintiff seeks to recover against defendant for personal injuries allegedly sustained as a result of a ruptured breast prosthesis. Plaintiff seeks to recover on theories of strict liability, negligence, and breach of warranty.

Defendant Baxter has filed a motion for summary judgment in its favor on all of plaintiff's theories of recovery. The motion has been fully briefed, and, finding no need for a hearing, the Court now rules pursuant to Local Rule 6(E) (D.Md.1988). For the reasons stated herein, the Court will grant the motion.

Background

Between March 1976 and December 1982, Heyer-Schulte Corporation ("Heyer-Schulte"), was a wholly owned subsidiary of American Hospital Supply Corporation. Heyer-Schulte manufactured, among other products, a breast prosthesis. On December 16, 1982, Heyer-Schulte merged with American Hospital Supply Corporation ("American Hospital"), becoming one of American Hospital's divisions. On March 30, 1984, American Hospital sold its breast prosthesis product line to Mentor Corporation. As part of the sale, American Hospital agreed to indemnify Mentor Corporation for any liability arising from a breast prosthesis which had been manufactured and released by Heyer-Schulte.

On November 25, 1985, American Hospital was acquired by Baxter Travenol Laboratories Inc. American Hospital merged into Travenol Laboratories, Inc. on December 31, 1986, which is now known as Baxter Healthcare Corporation. Baxter, the only remaining defendant in this case, is the successor to the indemnity agreement originally made between American Hospital and Mentor.

Statement of Facts

In late 1975, plaintiff Linda Lee consulted Dr. Bahman Teimourian about breast augmentation. At her deposition, Ms. Lee testified that Dr. Teimourian assured her that there was a "lifetime guarantee" with the breast prosthesis, that the prosthesis could withstand severe impact, and that it would not leak. Plaintiff testified further that Dr. Teimourian did not warn her of the potential complications associated with the procedure, and that had she been warned of the possibility of any complications, she would not have proceeded with the surgery.

Dr. Teimourian testified during his deposition that, although he could not recall the specific conversation he had with Ms. Lee, he would have explained to her all the possible complications with a breast prosthesis known at that time. Additionally, Dr. Teimourian specifically recalled providing all of his patients at that time with a brochure published by Dow Corning Company regarding breast implants which explained the procedure. Ms. Lee does not recall ever receiving that pamphlet or any other warning from the doctor.

After two consultations, Ms. Lee proceeded with the breast augmentation. The surgery was performed at Suburban Hospital in Montgomery County, Maryland on March 3, 1976. Dr. Teimourian has testified that he is not sure which manufacturer's breast prosthesis he implanted in Ms. Lee. However, he does recall that in March 1976, he was using implants manufactured by Heyer-Schulte and Surgitek as well as other companies.

Ms. Lee experienced no problems with the breast implants from March 1976 until November 1985. In November 1985, plaintiff detected small nodules in her left breast. Plaintiff states that she feared she had developed breast cancer since her family has a history of breast cancer, but she did not seek medical assistance until January 1986. At that time, Ms. Lee had a breast examination at a Montgomery County health clinic but was told a diagnosis could not be rendered without an immediate biopsy. Despite this medical recommendation, Ms. Lee chose not to proceed with the biopsy. In August 1986, plaintiff was persuaded to undergo mammography which revealed that her left prosthesis had ruptured.

On September 26, 1986, Dr. Teimourian examined Ms. Lee and confirmed that the left prosthesis had ruptured while the right one remained intact. Dr. Teimourian advised plaintiff that the silicone would not pose a health risk, but nevertheless recommended that both implants be removed and replaced. On October 14, 1986, Ms. Lee underwent explant surgery during which the original implants were replaced by larger implants. Dr. Teimourian last saw plaintiff in May 1987 when she complained of dissatisfaction with the appearance of her new breasts. Dr. Teimourian told Ms. Lee that he could perform corrective surgery, but as of this date the procedure has not been performed.

Plaintiff now seeks to recover damages for the "grievous and painful injuries" caused by the rupture, medical expenses incurred as a result of the rupture, and other "pain and mental anguish" suffered as a result of the rupture. The complaint alleges strict liability, negligence, and breach of warranty as theories of defendant's liability. In its motion for summary judgment, defendant argues that plaintiff cannot make out a cause of action on any of these theories.

Standards for Summary Judgment

Summary judgment shall be granted only if it appears that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56. All evidence shall be viewed in the light most favorable to plaintiff. Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). But plaintiff must meet the burden of proof by showing more than the existence of a scintilla of evidence; evidence must be produced sufficient for a reasonable jury to find in plaintiff's favor. Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). This standard "mirrors the standard for a directed verdict." Id. at 250, 106 S.Ct. at 2511. Plaintiff has the burden of producing evidence that would support a jury verdict, "even where the evidence is likely to be within the possession of the defendant, as long as the plaintiff had a full opportunity to conduct discovery." Id. at 257, 106 S.Ct. at 2514. Once the defendant has pointed out the absence of an essential element of plaintiff's case, the burden is on plaintiff to make a sufficient showing to create a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

Discussion

1. Plaintiff Has Failed to Identify the Product Manufacturer

Under traditional products liability law, the plaintiff must prove that the defendant manufacturer made the product that caused plaintiff's injury. See Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480 (11th Cir.1985). It is axiomatic that the plaintiff must prove by a preponderance of evidence at trial that the product which allegedly caused her injury was manufactured and/or distributed by Heyer-Schulte. Ellis v. International Playtex, 745 F.2d 292, 296-97 (4th Cir. 1984). In Celotex v. Catrett, supra, the Supreme Court upheld the trial court's granting of summary judgment where a plaintiff failed to produce evidence during the discovery process linking the defendant's product with the injury to the plaintiff's deceased husband. Summary judgment was proper because the plaintiff had "failed to produce any evidence that any Celotex product ... was the proximate cause of the injuries alleged ..." 477 U.S. at 319, 106 S.Ct. at 2550.

Ms. Lee has failed to establish that Heyer-Schulte manufactured and/or distributed the breast prosthesis that allegedly caused her injuries. Plaintiff's complaint states that "defendants do not attach any identifying marks to their breast implant prosthetic devices and it is, therefore, impossible for the patient to identify which defendant is the manufacturer and/or distributor of the product in question." In her response to Baxter's summary judgment motion, plaintiff concedes, "It is possible that the identity of the manufacturer of this breast prosthesis will remain unknown."

Heyer-Schulte did in fact manufacture a breast prosthesis at the time of Ms. Lee's implant. However, Dr. Teimourian testified at his deposition that in March of 1976, he was implanting prostheses produced by a number of manufacturers, including Heyer-Schulte and Surgitek. Ms. Lee's medical records to not identify the manufacturer of the product. Edward Seder, formerly a Director of Quality Assurance at Heyer-Schulte, testified at his deposition that the configuration of Ms. Lee's breast prosthesis was unlike anything he had ever seen produced by Heyer-Schulte. Ms. Lee has produced no evidence linking her prosthesis to Heyer-Schulte. Her only attempt to identify Heyer-Schulte as the manufacturer has been to name her proposed expert, Ram Kossowsky. Plaintiff states that Mr. Kossowsky will testify as to the identity of the manufacturer, but she has not revealed any such evidence during discovery.

Having conceded that she may be unable to identify the manufacturer of the prosthesis, plaintiff raises several theories of liability based on non-identification of the defendant. Plaintiff focuses on market share liability, but also raises the possibility of alternative liability, concert of action liability, and enterprise liability. Plaintiff raises these theories in her response to defendant's motion for...