Rohde v. Smiths Medical
| Decision Date | 22 August 2007 |
| Docket Number | No. 06-213.,06-213. |
| Citation | 2007 WY 134,165 P.3d 433 |
| Parties | Richard Dean ROHDE, Appellant (Plaintiff), v. SMITHS MEDICAL, d/b/a Sims Deltec, Inc., A Minnesota Corporation, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Katherine L. Mead and Bradford S. Mead of Mead & Mead, Jackson, Wyoming. Argument by Ms. Mead.
Representing Appellee: Richard A. Mincer of Hirst & Applegate, Cheyenne, Wyoming; Michelle L. Rognlien of Bowman and Brooke, LLP, Minneapolis, Minnesota. Argument by Mr. Mincer.
Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.
[¶ 1] Mr. Rohde sued Smiths Medical d/b/a Sims Deltec, Inc. (Smiths Medical), the manufacturer of a venous access device which fractured after it was inserted into his chest to administer chemotherapy treatment, claiming the device was defective. The district court granted summary judgment in favor of Smiths Medical because Mr. Rohde did not present evidence ruling out reasonable secondary causes of the fracture so as to establish that the device was defective under the inference of defect rule.
[¶ 2] We affirm.
[¶ 3] Mr. Rohde articulated a single issue in his opening brief:1
I. Did the trial court err when it held that the inference of defect rule is inapplicable to the case at bar?
Smiths Medical restated the appellate issue as:
In this products liability case, did the District Court correctly grant summary judgment for Appellee Smiths Medical where Appellant Richard Rohde failed to produce any evidence of a defect in the design or manufacture of, or warnings related to, the PORT-A-CATH® medical device at issue?
[¶ 4] In March 2001, Mr. Rohde was diagnosed with Hodgkin's lymphoma.2 He underwent chemotherapy treatment which was initially administered through a vein in his arm. In July 2001, Mr. Rohde's oncologist, Banu Symington, M.D., recommended that he have a venous access device implanted to facilitate his chemotherapy treatments. On July 20, 2001, P. George Poore, M.D., a vascular surgeon at St. John's Hospital in Jackson, Wyoming, implanted a Port-A-Cath venous access device manufactured by Smiths Medical in Mr. Rohde's upper chest between his clavicle and first rib.
[¶ 5] The Port-A-Cath is designed to be implanted completely under the skin, usually in the chest or arm. Catheter tubing is inserted into the patient's blood system and attached to a portal consisting of a small metal chamber sealed at the top with a silicone septum. It allows medications or fluids to be delivered directly into the bloodstream by injection through the skin and into the portal.
[¶ 6] Smiths Medical provided physicians with instructions for the Port-A-Cath which stated that there was a risk the device could fracture as a result of compression between the clavicle and first rib. Dr. Poore advised Mr. Rohde of some risks associated with the implantation, but did not tell him there was a risk that the device could fracture while implanted in his body because the doctor believed the risk was so slight. Dr. Poore examined the Port-A-Cath prior to implantation in Mr. Rohde's chest and did not notice any defects. Dr. Poore's surgical records indicated that he had some minor difficulty implanting the device because Mr. Rohde had a large clavicle and his tissue was resistant to the needle used in the procedure. Despite those difficulties, Dr. Poore was able to successfully implant the Port-A-Cath and determined it was working properly.
[¶ 7] Over the next several months, Mr. Rohde received chemotherapy treatments utilizing the Port-A-Cath device. It seemed to work properly, although Mr. Rohde had to lie on his back while receiving the treatments in order for the device to work. In the fall of 2001, Dr. Symington decided that Mr. Rohde could cease chemotherapy treatments. She recommended, however, that the Port-A-Cath remain in place because there was "a very high likelihood" that Mr. Rohde's cancer would return within the next year or two, necessitating further treatment. She directed Mr. Rohde to have the Port-A-Cath flushed periodically to guard against the formation of blood clots.
[¶ 8] In November 2001, Mr. Rohde began experiencing pain during and after flushing of the Port-A-Cath. He treated the pain with a heating pad and ice therapy. On December 4, 2001, Mr. Rohde complained of pain during the flushing process. Dr. Symington suspected a blood clot had formed and ordered a venous dye study to check for a clot. Although she intended for the dye to be administered through the Port-A-Cath to test its patency, the doctor performing the procedure inserted the dye through Mr. Rohde's veins; consequently, the Port-A-Cath was not tested at that time. The venous dye study did not reveal a blood clot.
[¶ 9] On January 17, 2002, Mr. Rohde began to bleed from the Port-A-Cath. Medical tests revealed that a six to seven centimeter section of the catheter tubing had fractured off from the remainder of the Port-A-Cath and migrated through Mr. Rohde's heart to his pulmonary artery. Thomas Cunningham, M.D., an interventional radiologist, retrieved the fragment from Mr. Rohde's pulmonary artery. Before discarding the broken piece, Dr. Cunningham looked at it and noticed that, although one end looked normal and smooth, the other end had a slightly irregular or jagged edge. Dr. Poore subsequently removed the remainder of the Port-A-Cath from Mr. Rohde's chest and discarded it. While examining that piece, Dr. Poore noted that, other than the fact it was shorter, it looked essentially the same as when he implanted it.
[¶ 10] In 2004, Mr. Rohde sued St. John's Medical Center,3 Dr. Poore4 and Smiths Medical. Mr. Rohde claimed Smiths Medical was strictly liable for the injuries he incurred because the Port-A-Cath fractured. He asserted the Port-A-Cath was defective and Smiths Medical had failed to adequately warn about the risk of fracture of the device.
[¶ 11] After extensive discovery, Smiths Medical filed a motion for summary judgment and submitted testimony and exhibits indicating there was no evidence of a defect in the Port-A-Cath and Smiths Medical had adequately warned Mr. Rohde's physicians about the risks associated with the Port-A-Cath, including the possibility of fracture. In response, Mr. Rohde did not present any evidence to establish a specific defect in the Port-A-Cath, but asserted the court should allow his strict liability claim to proceed under the inference of defect rule recognized in Sims v. General Motors Corp., 751 P.2d 357 (Wyo.1988). Specifically, Mr. Rohde argued that he was entitled to an inference the Port-A-Cath was defective simply because it fractured while implanted in his body. Although he asserted that Dr. Poore did not warn him about the risk of fracture, he did not respond to Smiths Medical's argument regarding the adequacy of the warnings it provided to physicians about the risk.5
[¶ 12] In reply to Mr. Rohde's inference of defect argument, Smiths Medical asserted that to qualify for an inference that the Port-A-Cath was defective under Sims, Mr. Rohde was required to show that a malfunction occurred with normal use and there were no reasonable secondary causes of the malfunction. The manufacturer maintained the evidence showed that compression between the clavicle and first rib, a known risk, was a reasonable secondary cause of the fracture of Mr. Rohde's Port-A-Cath. In particular, Smiths Medical relied upon the opinion of Dr. Poore's expert witness, Michael Fenoglio, M.D., that Mr. Rohde's Port-A-Cath broke because of clavicle/first rib compression exacerbated by his weight gain after the device was implanted. Mr. Rohde failed to offer any evidence showing that the fracture occurred for some other reason or to counter, in any way, Smiths Medical's showing that compression was a reasonable secondary cause of the fracture of his Port-A-Cath.
[¶ 13] The district court rejected Mr. Rohde's inference of defect argument because he failed to present evidence to counter that offered by Smiths Medical. The court also ruled that fracture was an inherent risk associated with use of the Port-A-Cath and Smiths Medical warned physicians about that risk. On appeal, Mr. Rohde contests the district court's refusal to allow his products liability claim to proceed under the inference of defect rule.
[¶ 14] W.R.C.P. 56(c) governs summary judgment and states that a motion for summary judgment should be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."
[¶ 15] Our standard for reviewing the district court's decision to grant a summary judgment is de novo. We evaluate the propriety of a summary judgment by employing the same standards and examining the same material as the district court. We consider the record in the light most favorable to the party opposing the motion, affording to that party the benefit of all favorable inferences that may be drawn from the record. If upon review of the record, doubt exists about the presence of issues of material fact, that doubt must be resolved against the party seeking summary judgment. A genuine issue of material fact exists when a disputed fact, if proven, would establish or refute an essential element of a cause of action or a defense that a party has asserted. Cook v. Shoshone First Bank, 2006 WY 13, ¶ 11, 126 P.3d 886, 889 (Wyo.2006); Linton v. E.C. Cates Agency, Inc., 2005 WY 63, ¶¶ 6-7, 113 P.3d 26, 28 (Wyo.2005).
[¶ 16] Mr. Rohde claims the district court erred when it granted summary judgment on his claim that Smiths Medical was strictly liable for the injury he suffered as a result of the Port-A-Cath's fracture. He argues the district court erroneously refused to apply the inference of defect rule to allow his claim to...
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