Prather v. Laboratories

• Decision Date: 02 April 2013
• Docket Number: Civil Action No. 3:09–CV–00573–H.
• Citation: Prather v. Abbott Lab., 960 F.Supp.2d 700 (W.D. Ky. 2013)
• Parties: Kris PRATHER, Plaintiff v. ABBOTT LABORATORIES, et al., Defendants.
• Court: U.S. District Court — Western District of Kentucky

960 F.Supp.2d 700

Kris PRATHER, Plaintiff

v.ABBOTT LABORATORIES, et al., Defendants.

Civil Action No. 3:09–CV–00573–H.

United States District Court,

W.D. Kentucky,

at Louisville.

April 2, 2013.

Gary J. Douglas, Michael A London, Michael D. Sharp, Rebecca G. Newman, Douglas & London, PC, New York, NY, for Plaintiff.

Jeannine M. Davanzo, Morris Duffy Alonso & Faley, Maria J. Ciccia, Cozen & O'Connor, New York, NY Edward H. Stopher, Ian Charles Baird Davis, Boehl Stopher & Graves, LLP, Louisville, KY, Lauren A. Tulli, Jill M. Caughie, Cozen & O'Connor, Terry M. Henry, Blank Rome LLP, Mary Teresa Soltis, Philadelphia, PA, for Defendants.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, District Judge.

This is a products liability and negligence case in which Plaintiff, Kris Prather, alleges that a medical device, the Pain Control Infusion Pump (“PCIP”), manufactured by Defendant, B. Braun Medical, Inc., caused severe and permanent damage to her shoulder.¹ The PCIP is a medical device prescribed to alleviate the pain of a post-operative patient by delivering a continuous infusion of a local anesthetic into the post-operative site. Prather alleges several tort claims related to the PCIP after she developed chondrolysis in her shoulder, including strict products liability, negligence, breach of express and implied warranties, fraudulent misrepresentation, fraudulent concealment, negligent misrepresentation, and fraud. She seeks compensatory and punitive damages.

This case is now before the Court on a motion for summary judgment filed by Defendant. For the following reasons, the Court will grant the motion, and this case will be dismissed.²

I.

On June 18, 2001, Prather underwent arthroscopic surgery on her left shoulder to treat a posterior labral tear. Her orthopedic surgeon, Dr. Felix Savoie, performed the surgery. At the end of the procedure, Dr. Savoie implanted the PCIP in the intra-articular space of Prather's shoulder to help alleviate any post-surgery pain. Essentially, the PCIP is a medical device designed to administer the continuous injection of pain medication, in this case bupivacaine, directly into certain areas of the body. Defendant manufactured the PCIP for Sgarlato pursuant to a distribution agreement. Sgarlato marketed the PCIP and sold it to hospitals, including River Oaks Hospital, the location of Prather's surgery. Dr. Savoie testified that he was not involved in the hospital's decision to buy a particular pain pump brand.

Initially, Prather's post-surgery recovery looked promising. However, two years later, Prather complained of shoulder pain. Several appointments and surgeries later, doctors formally diagnosed Prather as having glenohumeral chondrolysis, a painful condition involving the rapid and permanent breakdown of the cartilage in the shoulder joint.³

Next, the Court will summarize the regulatory history of the PCIP's, which provides a necessary backdrop to this case. The Federal Food and Drug Administration (“FDA”) regulates medical devices such as the PCIP, a Class II device. 21 C.F.R. § 880.5725(b). Prior to marketing a Class II medical device, the manufacturers must satisfy the FDA premarket approval process. 21 U.S.C. § 360e. A device manufacturer can do this in one of two ways: (1) by obtaining Premarket Approval (“PMA”) following a rigorous application process in which the applicant must establish that a new or modified device is both safe and effective, or (2) by obtaining Premarket Notification, which a manufacturer can procure under section 510(k) of the Federal Food, Drug and Cosmetic Act (a “510(k) clearance”). See id. This second avenue is available to manufacturers who can demonstrate to the FDA that the device to be marketed is at least as safe and effective, that is “substantially equivalent,” to an existing FDA-approved device (known as a “predicate device”). 21 U.S.C. § 360(k); 21 C.F.R. § 807. If the FDA determines that the applicant's device is “substantially equivalent” to a “predicate device,” it can obtain 510(k) clearance. 21 U.S.C. § 355(b)(1)(F); see Medtronic, Inc. v. Lohr, 518 U.S. 470, 478, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996) (“If the FDA concludes on the bases of the § 510(k) notification that the device is ‘substantially equivalent’ to a preexisting device, it can be marketed without further regulatory analysis.”).

On March 19, 1999, the FDA approved Sgarlato's 510(k) clearance for the PCIP. In the application, Sgarlato claimed substantial equivalence to the Ambulatory Drug Delivery System, an infusion device designed to deliver medicine intravenously through a catheter during surgery. The FDA cleared the PCIP for the following use, as set out in Sgarlato's Statement of Indications for Use:

The Pain Control Infusion Pump is a single use device intended to provide continuous infusion of a local anesthetic directly into the intraoperative site for postoperative management of pain following surgery. Medication is intended to be delivered percutaneously through a catheter.

ECF No. 266–10. The label for the PCIP stated that it was “for continuous delivery of medication for control of pain.” ECF No. 266–8.

Prather's main allegation is that Defendant failed to consider scientific and medical literature, published prior to the June 2001 surgery, which put Defendant on notice that the use of pain pumps to deliver anesthetic medications directly into the shoulder joint could cause severe harm. According to Prather, Defendant failed to perform any tests concerning the safety of the intra-articular infusion of anesthetics, and that Defendant manufactured the device for such a use under a flawed regulatory submission. Because of this failure, inadequate warnings and instructions for use accompanied the PCIP.

II.

Defendant has moved for summary judgment on all claims. Summary judgment is appropriate where “there is no genuine dispute as to any material fact.” Fed.R.Civ.P. 56(c). Initially, the moving party bears the burden of proving that no genuine issues of material fact exists and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The nonmoving party opposing a properly supported motion for summary judgment may not rest on mere denials or allegations to defeat such a motion, but must set forth “specific facts showing that there is a genuine issue for trial.” Id. at 324, 106 S.Ct. 2548. In deciding a motion for summary judgment, the Court will view the facts in a light most favorable to the nonmoving party. Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). This Court has diversity jurisdiction and as such, will apply Kentucky substantive law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

Prather's main claim in this dispute is for products liability. Specifically, Prather alleges that Defendant should be liable for manufacturing the PCIP for Sgarlato, as Defendant failed to consider scientific literature, available prior to the June 2001 surgery, which alerted Defendant of the risk of harm created by the continuous infusion of a local anesthetic into the shoulder's intra-articular space.

In Kentucky, product liability actions are governed by the Kentucky Product Liability Act (“KPLA”). SeeKRS § 411.300–.350. ⁴ A plaintiff may advance three different causes of actions against a manufacturer: (1) strict liability, (2) negligence, and (3) breach of warranty. Williams v. Fulmer, 695 S.W.2d 411, 413 (Ky.1985). Additionally, Kentucky law recognizes three theories of product liability: (1) defective design, (2) defective manufacture, and (3) failure to warn. Clark v. Hauck Mfg. Co., 910 S.W.2d 247, 251 (Ky.1995), overruled on other grounds by Martin v. Ohio Cnty. Hosp. Corp., 295 S.W.3d 104 (Ky.2009). To recover under any product liability claim, the plaintiff must prove the existence of a “defect,” McCoy v. Gen. Motors Corp., 47 F.Supp.2d 838, 839 (E.D.Ky.1998), and legal causation. Morales v. Am. Honda Motor Co., Inc., 71 F.3d 531, 537 (6th Cir.1995) (citing Huffman v. SS. Mary & Elizabeth Hosp., 475 S.W.2d 631, 633 (Ky.1972)). Prather's product liability claim is premised on strict liability, negligence and breach of express and implied warranties. Though the claims are closely related, the Court will address each individually.

III.

Prather's strict liability claim is based on the theory that the PCIP was defective, either in its design or because Defendant failed to warn of irreversible cartilage damage caused by the PCIP. Kentucky follows the Restatement (Second) of Torts. Dealers Transp. Co. v. Battery Distrib. Co., 402 S.W.2d 441, 446–47 (Ky.1966). Section 402A of the Restatement imposes strict liability on a product manufacturer “who sells any product in a defective condition unreasonably dangerous to the user.” Restatement (Second) of TortsS § 402A(1).

A.

Comment k to the Restatement (Second) of Torts § 402A provides an exception to the general rule of strict liability for “apparently useful and desirable product[s], attended with a known but apparently reasonable risk.” Id. at cmt. k.⁵See McMichael v. Am. Red Cross, 532 S.W.2d 7, 9–11 (Ky.1975) (ruling that comment k is applicable under Kentucky law).

Comment k acknowledges that “some products, such as certain drugs, are so beneficial and necessary that the manufacturer of these products should not, in all instances, be held strictly liable for unforeseeable harm.” Graham by Graham v. Wyeth Labs., 666 F.Supp. 1483, 1496 (D.Kan.1987). “When applying Comment k to Kentucky law, the manufacturer's liability is limited to ... warning defects, where a manufacturer's failure to market a drug or vaccine without adequate warnings of its dangers renders the product defective.” Foister v. Purdue Pharma, L.P., 295 F.Supp.2d 693, 705 (E.D.Ky.2003) (internal quotation omitted). Thus, if comment k applies to the instant action,...