Estate of Ludwick v. Stryker Corp.
| Decision Date | 29 October 2014 |
| Docket Number | No. 13–0754.,13–0754. |
| Citation | 859 N.W.2d 671 (Table) |
| Parties | The ESTATE OF Michael LUDWICK, by and through its Duly Appointed Legal Representative, Jean SORSEN, Plaintiff–Appellant, v. STRYKER CORPORATION, a Corporation; Stryker Biotech LLC, a Corporation and a Wholly Owned Subsidiary of Stryker Corporation; Various unknown subsidiaries of Defendant Stryker Corporations; Catholic Health Initiatives–Iowa, Corp., d/b/a Mercy Hospital Medical Center in Des Moines, Iowa, a Corporation; and Iowa Orthopaedic Center, P.C., a Corporation, Defendants–Appellees. |
| Court | Iowa Court of Appeals |
Marc A. Humphrey of Humphrey Law Firm P.C., Des Moines; Justin K. Swaim, Des Moines; and Stuart L. Higgins of Higgins Law Firm, PLLC, Des Moines, for appellant.
David N. May of Bradshaw, Fowler, Proctor & Fairgrave, P.C., Des Moines; Robert M. Connolly, Douglass Farnsley, and Jamie K. Neal of Stites & Harbison, PLLC, Louisville, Kentucky; and Joshua Levy of Ropes & Gray, LLP, Boston, Massachusetts, for appellees Stryker Corporation and Stryker Biotech LLC.
Connie L. Diekema and Jeffrey A. Craig of Finley, Alt, Smith, Scharnberg, Craig, Hilmes & Gaffney, P.C., Des Moines, for appellee Catholic Health Initiatives–Iowa Corp., d/b/a Mercy Hospital Medical Center in Des Moines, Iowa.
Robin L. Hermann of Patterson Law Firm, L.L.P., Des Moines; and Maja C. Eaton and Tacy F. Flint of Sidley Austin LLP, Chicago, Illinios, for appellee Iowa Orthopaedic Center.
Heard by VAITHESWARAN, P.J., and DOYLE and McDONALD, JJ.
The district court dismissed the Estate of Michael Ludwick's wrongfuldeath action as a sanction for violating its duty to provide and supplement discovery as set forth in the Iowa Rules of Civil Procedure. The Estate appeals, contending, among other things: (1) the court lacked authority to dismiss its claims as a sanction because it did not violate a court order, since there was no court order in existence compelling discovery for it to violate; and (2) even if it did have authority, the court abused its discretion in ordering dismissal as a sanction. Because we conclude the district court possessed the requisite authority to impose the sanction of dismissal under the facts of this case and it did not abuse its discretion, we affirm the dismissal.
In June 2006, Michael Ludwick severely fractured his right leg while working out of state. Immediate surgery was required, and pins and a rod were utilized in an attempt to repair the fracture. Ludwick returned to Iowa, and he saw Dr. Craig Mahoney, an orthopedic surgeon with the Iowa Orthopaedic Center, for follow-up care of his leg.
After several months of care, Dr. Mahoney determined Ludwick's fractured bones were not healing properly, a complication called a “nonunion,” and he concluded that an additional surgery would be necessary. In March 2007, Dr. Mahoney performed the surgery to treat the nonunion at Mercy Hospital. In the surgery, Dr. Mahoney used the Stryker Biotech product “OP–1 Implant,” a naturally-occurring protein that promotes new bone growth.
Two and a half months after the surgery, Ludwick collapsed at his girlfriend's house, and he was later pronounced dead at the hospital. The chief medical examiner for the State of Iowa, Dr. Julia Goodwin, performed an autopsy and obtained blood samples from Ludwick's heart and femoral artery. In dissecting Ludwick's right lung, Dr. Goodwin discovered foreign body pulmonary emboli she described as rubbery, white protrusions. Additionally, Ludwick's femoral blood was tested and revealed the presence of methamphetamine. Dr. Goodwin ultimately concluded Ludwick's death was caused by “[m]ethamphetamine intoxication complicated by multiple pulmonary emboli.”
In 2009, Ludwick's estate filed a wrongful-death action, asserting claims against the defendants of products liability, medical negligence, breach of implied and express warranties, fraud, and conspiracy. The Estate alleged, among other things, Ludwick's death was caused solely by the foreign body pulmonary emboli. The Estate further asserted the foreign body pulmonary emboli resulted from the migration of Stryker Biotech's OP–1 Implant product from the fracture site, through the bloodstream, and then to Ludwick's lungs.
After the Estate's action was filed, the defendants propounded customary discovery requests to the Estate. One interrogatory requested the identity of the Estate's expert witnesses and “the substance of the facts and opinions to which each expert [was] expected to testify.” Additionally, a request for production of documents requested the Estate to produce expert witness files, including “test results ... in the possession of or generated by said expert witness.”
As the litigation progressed, the Estate came to focus on Stryker's alleged off-label promotion of the use of its OP–1 Implant product in combination with another of its products, Calstrux, in treating nonunion fractures. With regard to the methamphetamine found in Ludwick's blood, the Estate contended it played no part in his death, contrary to the opinion of the state medical examiner. Rather, the Estate asserted two theories concerning the positive methamphetamine test: (1) the methamphetamine detected in Ludwick's blood could have come from Ludwick's use of over-the-counter products containing a non-illicit form of methamphetamine, such as a nasal decongestant, a Vicks inhaler, diet pills, herbs, and epinephrine ; and (2) the amount of methamphetamine detected in Ludwick's blood would not cause death.
In support of its two theories, the Estate in 2010 obtained the opinions of toxicologists Dr. Saaed Jortani and Dr. Michael Rehberg in the form of affidavits. Both toxicologists explained in their affidavits there are two isomeric forms of methamphetamine: Levo-methamphetamine (“L methamphetamine”) and Dextromethamphetamine (“D methamphetamine”). The “[D methamphetamine] isomer is pharmacologically more active, has a high potential for abuse, and is typically found in illicit preparations while [L methamphetamine] is less centrally acting and found in pharmaceutical preparations such as over-the-counter nasal decongestants.”1 Dr. Jortani cited his own published work concerning the use of Vicks inhalers and the detection of methamphetamine in urine in support of the opinion that “the detection of methamphetamine should not lead the reader to assume illicit use of the drug.”2 Both toxicologists noted no testing had been done on Ludwick's blood sample to determine the form of methamphetamine found therein, and both toxicologists were critical of the medical examiner's limited knowledge of methamphetamine's different forms and her opinion that the positive methamphetamine finding was the result of use of the illicit form of methamphetamine. Both toxicologists noted witnesses had stated Ludwick had been using diet pills prior to his death, which could possibly explain his positive methamphetamine test result.
In March 2011, the Estate filed its designation of experts and both toxicologists were listed. Concerning Dr. Jortani, the Estate's notice stated:
Dr. Jortani is expected to testify about the incident of false positive readings of methamphetamine in routine toxicology studies. He is expected to educate the jury as to the distinction between [the two forms of] methamphetamine. Further he will educate the jury that in the field of toxicology, it is well known that certain assays utilized as a method for determining the existence of methamphetamine in a decedent's blood do not distinguish between [the two forms of methamphetamine]. He will further educate the jury that there are several prescription drugs and diet pills as well as over-the-counter medications that will metabolize in human blood as either [form of methamphetamine]. In fact, use of a Vicks [i]nhaler will result in a positive [L m]ethamphetamine reading. Based upon Dr. Jortani's investigation, he will share with the jury that there are ample reasons to be suspicious of the positive methamphetamine finding....
In December 2011, Dr. Jortani was deposed by the defendants. During the deposition, Dr. Jortani reaffirmed his opinions set forth in his 2010 affidavit. Additionally, he testified he was concerned about the “D and L situation” in regards to Ludwick's positive methamphetamine blood test because it had been stated Ludwick had used Vicks inhalers and diet pills prior to his death, which could explain the positive test result. Dr. Jortani explained that “if the L [methamphetamine form was] the only [form of methamphetamine] present [in Ludwick's blood], then ... [t]here's no other question ... it was Vicks,” ruling out illicit D methamphetamine use. Dr. Jortani testified he could not opine whether methamphetamine played a role in Ludwick's death until he saw the test results concerning the form of methamphetamine present, and he questioned the opinion of anyone concluding Ludwick was a methamphetamine abuser without having first determined the form of methamphetamine present. Because to so conclude would be “extremely premature” in his opinion, he had “kind of pressed for the testing” and stated “we're getting that soon.” He explained he had followed up with the lab chosen to do the testing, but because the lab had not yet received Ludwick's blood sample, the test had not yet been performed. However, he stated the medical examiner's office would be sending blood samples to the lab.
On January 9, 2012, Dr. Jortani received the test results from the lab determining the D/L methamphetamine ratio in Ludwick's heart-blood sample was 6.2. The report explained: “D/L Methamphetamine Ratio Heart • Blood: If the D/L Methamphetamine ratio is greater than 0.13, the Methamphetamine found is probably the result of the use of the DEA Schedule II CNS stimulant (d-methamphetamine). ” (Emphasis added.) This definitively ruled out use of a Vicks inhaler as an explanation of the positive methamphetamine test result. That day, Dr....
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